3084 


N9 


VINDICATION 


—OF— 


DR.  MERRITT. 


BEING 

THE  ARGUMENT  OF    HIS    COUNSEL    BEFORE   THE    ASSEMBLY  COM- 
MITTEE ON  PUBLIC  BUILDINGS  AND  GROUNDS,  AT  THE  CLOSE 
OF  THEIR  INVESTIGATION  OF  MATTERS  CONNECTED  WITH 
THE  CONSTRUCTION  OF  THE  UNIVERSITY  ^BUILDING 
KNOWN  AS  THE  "COLLEGE  OF  LETTERS/' 


Mr.  Chairman  and  Gentlemen  of  the  Assembly    Committee  on 
Public  Buildings  and  Grounds. 

Having,  as  counsel  for  Dr.  Merritt,  one  of  the  Regents 
of  the  University,  attended  at  the  second  part  of  your  in- 
vestigation into  the  construction  of  the  University  building  at 
Berkeley,  known  as  the  "College  of  Letters,"  it  seems 
proper  that  I  should  present  to  you  in  my  client's  behalf, 
the  conclusions  which  he  claims  to  have  been  established  by 
the  testimony. 

Being  referred  by  your  chairman  to  "  the  newspapers  ", 
— for  the  charges  which  are  to  be  repelled,  we  have  directed 
our  defence  to  those  points  upon  which  the  attack  is  made  by 
the  press.  They  are,  in  general,  charges  of  negligence  on 
the  part  of  the  Board,  and  of  positive  fraud  and  corruption 
on  the  part  of  Dr.  Merritt,  in  the  building  of  the  College  of 
Letters. 

The  Eegents,  as  a  body,  by  the  opening  address  made  by 
ex-Governor  Haight  in  their  behalf,  and  the  summing  up 
made  by  Mr.  Butterworth,  as  their  mouthpiece,  have  shown 
very  clearly  how  groundless  are  the  charges  made  against 
them.  They  have  shown  that  their  confidence  in  Doctor 
Merritt  was  not  ill  founded;  that  in  availing  themselves  of 
his  experience,  energy,  and  sagacity,  by  throwing  the  over- 
sight of  the  building  chiefly  upon  him,  they  have  done 
wisely,  and  secured  far  better  results,  than  if  there  had  been 
a  divided  responsibility;  and  that  they  have  secured  for  the 
State  a  building  better  worth  the  money  it  cost,  than  any  other 
public  edifice  in  the  State. 

In  doing  this,  they  have  necessarily,  to  a  great  extent, 
vindicated  my  client;  for  the  building  is  mainly  the  result 
of  his  sagacity  in  planning, — his  energy  and  care  in  execu- 
tion. It  was  through  his  arguments  and  representations, 
that  the  Eegents  determined  to  erect  a 


WOODEN   BUILDING. 

It  stands,  a  monument  of  his  sound  judgment; — a  com- 
modious, roomy,  well  arranged  edifice, — its  halls  broad, 
— its  rooms  light,  airy  and  pleasant; — one-third  larger 
than  the  College  of  Agriculture,  and  costing  less  than  one- 
half  as  much.  It  has  cost  too,  nearly  $20,000  less  than  was 
estimated  by  the  architect  for  a  building  three-fourths  its 
size. 

The  excess  of  the  cost  of  the  College  of  Agriculture,  a 
building  of  brick  and  stone,  over  that  of  the  College  of  Let- 
ters, put  out  at  interest  at  eight  per  cent,  per  annum,  com- 
pounded yearly,  —will  erect  a  new  building  like  the  last 
named,  every  eight  years.  For  forty  years  at  least,  the 
wooden  building  will  be  as  good  for  use  as  that  of  brick  and 
stone.  At  the  end  of  that  time  both  will  be  antiquated,  and 
ought  to  be  torn  down  and  replaced  by  new  erections. 

It  is  shown  also  by  the  evidence  submitted,  that,  in  all 
the  matter, — notwithstanding  the  outcry  raised  by  "  the 
newspapers"  that  "everything  was  left  to  Dr.  Merritt  ", 
and  the  setting  forth  in  glaring  capitals  of  "  Dr.  Merritt's 
imperial  rule.  " 

DE .  MEEEITT  HAS  NOT  EXCEEDED   HIS  POWEES 

in  any  respect.  On  the  contrary  although  vested  by  resolu- 
tion of  the  Regents,  and  of  the  Building  Committee,  writh 
power  to  make  (in  conjunction  with  President  Oilman)  any 
changes  he  might  see  fit, — he  is  shown  to  have  made  not 
one  single  change  from  the  plans  or  specifications,  without 
consulting  with  the  Board,  or  as  many  of  its  members  as  he 
could  see,  and  obtaining  their  consent.  On  this  point  there 
is  no  conflict  in  the  testimony.  Nor  is  there  a  single  change 
thus  made,  which  does  not  prove  to  have  been  judicious, 
upon  getting  out  the  facts.  This  will'  be  shown  clearly, 
when  I  come  to  discuss  these  changes  in  detail.  It  is  enough 
now  to  say  that  his  acts  in  relation  to  the  building  of  the 
College  of  Letters,  after  thorough  investigation,  meet  with 
the  unqualified  approval  of  the  Board  of  Regents  under 
whom  he  acted,  as  being  fully  authorized  by  the  authority 
which  they  gave  him. 

Apart  from  any  charges  of  mere  excess  of  authority  on 


his  part,  it  has  been  freely  charged  that  in  the  construction 
of  the  College  of  Letters,  and  indeed  in  the  steps  prelimi- 
nary to  its  construction,  gross  frauds  were  perpetrated  by 
ray  client,  and  that  by  collusion  between  the  contractors  and 
himself  he  was  enriched,  and  the  public  was  robbed. 

THESE   CHARGES  OF   FRAUD 

I  propose  to  meet  squarely;  and  will  show  by  the  evidence, 
— not  merely  that  the  testimony  does  not  sustain  them, — but 
affirmatively  that  they  are  utterly  false. 

Before  discussing  them  in  detail,  there  is  one  general 
view  which  substantially  disposes  of  the  whole  matter. 

The  charges  are  made  in  all  the  forms  which  malice  could 
invent,  from  the  direct  accusation  of  fraud,  to  the  sneaking 
insinuation.  But  they  all  have  one  aim;  to  persuade  the 
community  that  Samuel  Merritt,  one  of  the  Kegents  of  the 
State  University  has,  through  the  facilities  offered  by  his 
official  station,  stolen  money  from  the  State.  And  "  the 
newspapers"  to  which  we  are  referred  to  learn  the  charges 
made,  have  undertaken  to  specify  even,  the  amount  so 
stolen;  one  paper  placing  it  as  high  as  from  $30,000  to 
$40,000  ! 

The  most  natural  and  direct  method  of  ascertaining 
whether  or  not  this  charge  is  true,  was  of  course  to  ascer- 
tain whether  there  was  an  opportunity  to  steal; — whether 
more  was  paid  for  the  building,  than  it  was  fairly  worth. 
If  it  should  appear  that  the  building  must  have  cost  the  con- 
tractors fully  as  much  as  the  State  paid  them  for  it, — it 
would  be  evident  that  there  could  have  been  no  stealing  in 
its  erection.  If  they  could  make  no  money  out  of  the  job, 
— -there  could  have  been  none  to  divide  with  Dr.  Merritt. 

The  committee  recognized  the  correctness  of  this  view, 
and  received  evidence  at  their  first  sessions  (before  Dr. 
Merritt  or  the  Regents  were  called  upon  to  defend  them- 
selves) to  show  that  the  building  was  worth  far  less  than  its 
cost. 

Dr.  Merritt  recognized  the  correctness  of  this  view,  and 
by  letter  to  the  Board  of  Eegents  invited  the  most  searching 
scrutiny  into  his  acts;  binding  himself  to  make  good  to  the 


University  every  dollar  lost  by  any  wrongful  act  or  omission 
of  liis. 

The  Eegents  recognized  the  correctness  of  this  view,  and 
upon  receiving  Dr.  Merritt's  letter  employed  no  less  than 
six  of  the  most  competent,  reliable,  and  well  known  archi- 
tects and  builders  of  the  city  of  San  Francisco,  to  make  a 
thorough  examination  of  the  building,  and  report  its  actual 
cash  value.  They  testified  before  you,  that  they  had  faith- 
fully and  carefully  performed  that  duty  and  they  gave  the  re- 
sult of  their  labors. 

Five  of  them  united  in  their  examination  and  in  their  re- 
port, which  is  made  in  detail.  The  men  who  make  this  re- 
port are  not  unknown  here.  Messrs.  GAYNOB  &  WILLIAMS, 
architects  of  established  reputation,  have  been  engaged  in 
that  profession  in  San  Francisco,  for  twenty-two  and  twenty- 
four  years  respectively.  Mr.  KING,  a  builder  here  ever 
since  San  Francisco  was, — has  followed  that  business  for 
forty  years  of  his  life.  Messrs.  DBUKY  and  KELLY,  have 
been  engaged  in  the  same  business  in  San  Francisco,  for 
eleven  and  twelve  years  respectively,  exclusive  of  their  pre- 
vious experience.  These  gentlemen  have  too  much  charac- 
ter at  stake  to  be  even  loose  or  inaccurate  in  such  a  matter. 
They  made  their  estimates  upon  mutual  discussion  and  con- 
sultation. They  estimate  the  cash  coin  value  of  the  build- 
ing (without  its  equipments)  as  it  stands  to-day,  at  $90,630. 

They  estimate  the  value  of  the  carpenters' work  at  $15,000, 
and  unanimously  say  that  it  would  cost  much  more  to  build 
it  in  the  ninety-nine  days  allowed  for  its  erection  than  if  the 
contractors  had  been  allowed  150  or  200  days.  Most  of 
them,  and  of  the  other  experts  examined  on  that  point,  esti- 
mate the  increased  cost  of  carpenters'  labor,  from  the  short- 
time  allowed,  at  twenty  per  cent.  If  we  only  allow  ten  per 
cent,  that  will  add  $1,500  to  the  cost. 

We  were  prepared  and  offered  to  show,  that  the  contract- 
ors suffered  a  loss  of  $4,100  in  selling  the  warrants  which 
they  received  at  par  in  payment  for  their  job. 

Let  us  now  compare  what  the  contractors  received  for 
their  work,  with  subsequent  expenditures  added,  with  the 
cash  coin  value  of  the  building,  as  estimated  by  these  ex- 
perts. 


Paid  contractors  in  warrants     $87,475  62 

Less  discount  on  warrants 4,100  00 


Cash  received  by  contractors $83,375  62 

Add  subsequent  expenditures  in  finishing  base- 
ment, etc.,  as  testified  to  by  Mr.  Gilchrist, 
page  896  8,752  42 

Total  cost,  in  coin $92,128  04 

Estimated  value,  in  coin $90,630 

Add  ten  per  cent,  to  $15,000.   Oarpentars' 

work,  for  haste 1,500  $92,130  00 

Which  does  not  seem  to  leave  a  very  broad  margin  for 
stealing ! ! 

But  here  I  may  properly  notice  an  error  (the  only  one 
shown)  into  which  these  gentlemen  appear  to  have  fallen, 
inadvertently,  in  their  estimate — not  an  unnatural  one: 

They  estimate  the  wainscoting,  2,610  lineal  feet  at  two 
dollars  per  foot — at  $5,220.  This  is  shown  to  be  a  fair 
price  for  the  panuelled  wainscotting  put  up,  painted,  grained, 
and  varnished.  But  the  carpenter  work,  painting,  grain- 
ing, and  varnishing  are  in  another  place  separately  estimated, 
each  in  one  item,  for  the  Avhole  building.  Without  these, 
the  wainscotting  is  shown  to  be  worth  seventy-five  cents  per 
lineal  foot.  Deducting  then,  from  the  aggregate  of  its  esti- 
mated value,  $1.25  per  foot  for  the  2,610  feet  of  wainscotting, 
or  $3,262.50  in  all,  we  have  left  $3,260,  as  the  compensation 
of  Power  &  Ough,  the  contractors,  for  their  services  in  con- 
structing the  building. 

If  we  allow  half  a  dollar  to  the  contractors  (as  is  usual) 
on  each  day's  work  in  the  building  (say  4,000)  and  ten  dol- 
lars per  day  for  Mr.  Ough's  personal  labor  (a  very  low  figure 
for  so  excellent  a  builder  as  he  is  proved  to  be),  three  hun- 
dred and  sixty  dollars  would  remain  as  the  profit  of  the  con- 
tractors, over  and  above  what  they  would  have  received,  if 
putting  up  the  building  by  the  day.  This  petty  sum  would 
doubtless  be  swallowed  up  entirely  by  the  extra  expense  in- 
curred in  making  the  alterations  testified  to,  after  the  build- 
ing had  so  far  progressed,  =that  a  part  of  the  basement  walls 
had  to  be  taken  down,  partitions  changed,  etc.,  in  order  to 
make  these  changes. 


Another  well-known  architect  of  San  Francisco,  twenty- 
four  years  in  the  profession,  (Mr.  JOHN  WRIGHT,  of  the  firm 
of  WEIGHT  &  SANDERS)  has,  at  the  request  of  the  Board  of 
Regents,  made  a  separate  and  independent  estimate  of  the 
value  of  the  College  of  Letters.  He  estimates  the  value  of 
of  the  building,  as  it  was  accepted  from  the  con- 
tractors, at $77,181  95 

Add  sum  since  expended  thereon 8,752  42 

Makes  total  present  value  ....    85,934  37 

Valuation  by  the  other  experts   ...   $90,630  00 

Less,  error  in  wainscotting 3,262  50     87,367  50 

Leaves  difference  in  the  valuations $  1,433  13 

Of  this  difference  about  $1,000  is  accounted  for  in  the 
estimate  for  plumbing,  gas-fittiifg,  and  steam-fitting.  This 
work,  being  entirely  covered  up  by  the  interior  finish,  of 
course  could  not  be  estimated  with  much  exactness  by  Mr. 
WTright,  while  the  others  had  the  advantage  of  knowing 
what  it  actually  cost  the  contractors.  He  allows  only  $1,550, 
while  it  is  shown  that  Power  &  Ough  actually  paid  out  for 
these  items  the  sum  of  $2,525.  This  leaves  so  small  a  dis- 
crepancy in  the  estimate,  that  it  is  not  worth  pursuing.  The 
aggregate  is  made  up,  too,  in  so  different  a  manner  under 
the  two  estimates,  that  it  is  not  easy  to  compare  them 
throughout.  As  far  as  they  can  be  compared,  there  seems 
to  be  no  serious  discrepancy — each  being  higher  on  some 
points,  and  lower  on  others,  as  independent  estimates  made 
by  capable,  honest  men,  with  no  motive  but  to  do  justice — 
would  be  likely  to  be. 

To  illustrate  the  determined  attempts  made  to  poison  the 
public  mind  in  this  matter,  I  will  here  call  attention  to  an 
editorial,  published  in  the  S.  F.  Evening  Post,  of  January 
27th,  18/4,  in  which  it  is  said  of  Dr.  Merritt,  that  in  the 
matter  of  the  construction  of  the  '  *  College  of  Letters,  he 
gave  the  builders  an  opportunity  of  clearing  $40,000  or  $50,- 
000  at  the  expense  of  the  noble  Institution  of  learning,  of  which 
lie  was  one  of  the  managers.'" 

The  Chronicle  of  January  21st,  says  "from  a  showing 
made  by  a  member  of  the  Committee,  it  seems  that  the 
figuring  so  far  in  regard  to  the  College  of  Letters,  points  to 


the  conclusion  that  some  $42,160  has  been  over-paid  on  the 
construction  of  the  building." 

And  this  twaddle,  so  foolish  and  absurd  in  the  light  of 
the  proof  given  of  the  real  value  of  the  building,  as  hardly 
to  rise  to  the  dignity  of  a  libel,  or  even  of  a  lie,  was  circu- 
lated throughout  the  State,  and  believed,  doubtless,  by 
thousands  of  people,  before  Dr.  Merritt  had  opportunity  to 
be  heard.  And  now  that  he  has  been  heard,  the  testimony 
given  in  his  behalf,  has  been  by  newspaper  reporters  so  per- 
verted, and  distorted,  and  suppressed  where  most  favorable 
to  him,  that  even  yet  the  reading  public  have  not  had  oppor- 
tunity to  know  the  facts. 

It  has  been  sought,  by  the  testimony  of  volunteer  wit- 
nesses who  procured  themselves  to  be  subpoenaed  in  the  first 
stages  of  this  investigation,  and  by  others  selected  by  one 
of  your  number,  at  a  later  stage,  to  show  that  the  building 
is  worth  less  than  we  have  shown. 

Chief  among  them  is  J.  W,  Duncan,  who  testified 
that  he  would  erect  such  a  building  for  $10,000  less  than  its 
cost  to  the  State. 

But,  unfortunately  for  this  gentleman's  reputation  for 
veracity,  he  is  proved  by  Mr.  Gilchrist's  testimony  to  have 
said  to  him  more  than  once,  that  the  building  is  the  cheap- 
est, at  the  price  paid  for  it,  of  all  the  public  buildings  in 
the  State;  and  further,  that  it  could  not  be  duplicated  for  the 
money  it  had  cost  the  State  ! 

Other  persons  who  endeavored,  in  the  early  stages  of  the 
investigation,  to  convey  a  similar  impression,  were  ascer- 
tained to  be  disappointed  bidders  for  contracts,  or  bitter 
personal  enemies  of  Dr^ Merritt;  and  as  they  made  no  de- 
tailed estimate  of  the  cost  of  the  building,  but  merely 
guessed  at  it  from  a  general  glance  at  the  building,  it  is 
hardly  worth  while  to  detain  you  with  a  discussion  of  their 
testimony. 

The  estimate  of  Messrs.  Doyle,  Gray,  and  Mahoney,  de- 
mands more  attention.  They  appeared  on  the  stand  like 
honest,  well  intentioned  gentlemen,  although  it  was  palpable 
that  they  thought  the  obligation  of  their  oath  was  that  they 
should  figure  the  value  of  the  building  as  low  as  possible. 


8 

Their  estimate  of  the  value  of  the  building  as  it  stands, 
exclusive  of  profit  to  contractors,  is  $67,913.92. 

But  they  only  allow  for  painting,  graining,  varnishing, 
etc.,  $4,300,  while  it  is  shown  without  contradiction  by  Mr. 
Farwell,  who  did  the  painting  under  the  contractors,  that  it 
actually  cost  them  between  $7,000  and  $8,000  for  the  labor 
and  material. 

They  allow  for  carpenters'  labor  only  $9,750;  being 
2,437J  days'  work  on  a  building  one  hundred  and  seventy 
feet  long,  about  sixty-five  feet  wide,  and  four-stories  high. 
As  has  been  stated,  the  five  gentlemen  who  made  the  estimate 
for  the  Eegents,  allow  $15,000,  or  3,750  days' work  for  this 
item.  In  the  estimate  of  Doyle  and  his  colleagues  the  car- 
penter work  is  reckoned  at  only  a  trifle  over  fourteen  per 
cent,  of  the  whole  cost  of  the  building.  According  to  the 
estimate  of  Messrs.  Gaynor  and  Williams  and  their  associates, 
it  forms  about  sixteen  and  a  half  per  cent,  of  the  whole 
cost. 

Mr.  Doyle  and  his  associates  also  reckon  the  brick-work 
at  three  dollars  per  M  less,  in  the  wall,  than  the  others  do, 
and  their  estimate  of  the  prices  of  lumber  are  considerably 
lower.  I  could  not  see  that  the  three  gentlemen  were  more 
likely  to  be  correct  than  the  six,  on  these  points.  They  al- 
low only  $1,000  for  hauling  to  Berkeley,  (some  five  miles 
from  Oakland,)  all  the  material  used  in  the  building,  includ- 
ing among  other  items 

286  M  Brick; 

Over  350  M  lumber. 

All  the  lime,  cement  and  sand  used  in  laying  these  bricks, 
plastering  the  inside  of  the  building,  and  cementing  the 
outside  of  the  basement  walls,  as  well  as  in  deafening  the 
floor. 

All  the  doors,  sash,  blinds,  columns,  pilasters,  balusters, 
and  other  work  manufactured  and  put  together  at  the  mill, 
etc.,  etc. 

For  this  hauling  the  six  experts  allowed  $1, 500,  and  no 
one  can  doubt  that  the  allowance  is  little  enough. 

I  offered,  in  behalf  of  Dr.  Merritt,  to  put  on  the  stand 
after  Messrs.  Doyle,  Mahoney,  and  Gray  had  testified,  Mr. 
Thomas  Moffatt,  a  thorough  carpenter  and  builder,  (who 


had  carefully  examined  the  building,  and  was  with  these 
gentlemen  during  a  part  of  their  examination,)  in  order  to 
point  out  some  of  the  errors  into  which  they  had  fallen.  At 
the  time  they  were  sworn  and  sent  to  Berkeley,  I  stated  to 
the  Committee,  in  behalf  of  Dr.  Merritt,  that  evidence  had 
been  offered  by  his  opponents,  to  show  the  building  worth 
less  than  was  paid  for  it.  The  testimony  of  the  six  archi- 
tects and  builders  had  been  offered  to  rebut  that  evidence. 
If  new  evidence  should  now  be  offered,  merely  cumulative, 
upon  that  point — to  bolster  up  that  first  given  against  my 
client — we  should  claim  the  right  to  rebut  that  also.  I  un- 
derstood the  right  so  to  do,  to  be  conceded,  yet  after  these 
three  experts  had  been  introduced  to  confirm  the  testimony 
first  given,  to  the  effect  that  the  building  was  not  worth  the 
money  paid  for  it,  Dr.  Merritt  was  not  allowed  to  rebut  that 
testimony,  and  we  had  to  withdraw  our  witness. 

I  cannot  believe  that  the  committee  intended  any  unfair- 
ness :  I  presume  that  they  were  simply  tired  of  this  tedious 
work  of  investigation.  But,  unless  thoroughly  satisfied  that 
the  building  is  worth  all  it  cost,  they  certainly  did  my  client 
an  injustice  in  thus  stopping  his  mouth,  and  refusing  to 
hear  his  witness. 

But  I  must  admit  that  his  testimony  was  not  needed. 
Without  it,  the  building  is  incontestibly  proven  to  be  well 
worth  every  dollar  it  has  cost  the  State.  Without  further 
testimony,  it  is  clearly  shown  that  there  could  be  no  "  steal- 
ing "  about  the  building — for  the  reason  that  there  was  no 
more  than  a  very  moderate  margin,  in  the  price  paid,  for  the 
contractors'  personal  services. 

I  have  thus  fully  stated  this  matter,  because  the  public 
minr*  had,  by  the  ex  parte  testimony  first  given,  been  pois- 
oned; and  the  people  of  the  State  made  fully  to  believe  that 
in  this  matter  and  that — in  paint  and  plaster,  and  stairs  and 
windows,  in  porches  and  piazza — and,  in  fact,  all  over  the 
building — by  collusion  between  the  contractors  and  Dr. 
Merritt,  the  State  had  been  plundered,  and  the  conspirators 
enriched.  To  disprove  these  things  in  detail,  with  such  an 
impression  existing  in  advance,  would  be  a  very  up-hill  un- 
dertaking. For  that  reason,  since  a  twenty  years'  residence 
in  our  midst,  extensively  engaged  in  business,  with  a  charac- 
2 


10 

ter  among  his  fellow  citizens  all  that  time,  free  from  stain, 
is  to  count  for  nothing,  it  seemed  best  to  show,  first  of  all, 
in  general,  that  there  could  have  been  no  stealing,  for  the 
plain  reason,  that  there  was 

NO   BOOM   FOE   STEALING. 

I  may,  perhaps,  be  excused,  on  so  vital  a  point,  a  little 
repetition,  by  way  of  summary. 

In  doing  it,  I  adopt  the  estimate  of  the  six  architects  and 
builders — having  shown  that  the  estimates  of  the  other  gen- 
tlemen give  no  reason  for  rejecting  or  modifying  it. 

Value   of   the   building,   as  estimated  in  cash, 

gold  coin $90,630  40 

Less,  error  in  wainscotting 3,252  50 

$87,377  90 
Add  ten  per  cent,  to  labor,  for  haste  in  building 

— ninety-nine  days — only 1,500  00 


$88,877  90 

Warrants  paid  contractors $87,475  62 

Less  discount..  4,100  00 


$83,375  62 
Subsequent  expenditures  on  basement  8,752  42 — 92,128  04 

Balance  for  contractor's  services  and  profits. ...    $  3,250  14 

In  full  assurance  that,  by  the  showing  made,  you  are 
already  convinced,  that  the  State  has  received  a  full  equiv- 
alent for  its  money  in  the  College  of  Letters,  I  propose  now 
to  meet,  in  detail,  the  charges  made  against  my  client,  of 
colluding  with  the  contractors  to  defraud  the  State,  by 
means  of  departures  from  the  contract;  the  alleged  allow- 
ance of  too  large  compensation  for  extra  work  done  by  them; 
and  too  small  deduction  from  the  contract  prices  on  account 
of  omissions  or  other  changes  from  the  specifications,  which 
lessened  the  cost  of  building. 

To  understand  this  matter  of  departures  from  the  plans 
and  specifications,  a  brief  resume  of  the  history  of  the  build- 
ing is  necessary. 


11 

It  was  originally  proposed  to  erect  the  two  Colleges — of 
Agriculture  and  Letters,  respectively — of  brick,  stone,  and 
iron.  The  plans  and  specifications  for  both  were  drawn, 
with  that  object  in  view,  by  Mr.  Farquharson,  a  well-known 
architect  of  San  Francisco.  With  him  as  architect,  the 
College  of  Agriculture  was  begun.  J.  W.  Duncan  acting  as 
Superintendent  of  Construction — the  labor  (by  compulsion 
of  statute)  being  done  by  the  day,  under  the  eight-hour  law. 
It  is  a  building  about  three-fourths  as  large  as  the  College 
of  Letters.  When  the  basement  walls  were  nearly  com- 
pleted, but  before  the  window-caps  were  in,  forty-eight  thou- 
sand dollars  in  gold  coin  had  been  expended  on  the  job,  and 
the  funds  of  the  University  were  exhausted. 

At  the  instance  of  the  Kegents,  the  statute  was  so  amended 
that  the  work  could  be  done  by  contract.  The  Legislature  of 
1871-2  liberally  appropriated  $300,000  for  University  Build- 
ings; contracts  were  given  out  for  the  completion  of  the 
College  of  Agriculture,  and  it  has  been  finished  at  a  total 
cost  of  $200, 000,  as  nearly  as  can  be  calculated — exclusive 
of  its  very  expensive  equipments. 

After  contract  made  for  completion  of  this  first  Uni- 
versity building,  and  the  necessary  disbursements  deter- 
mined upon  for  improvement  of  the  University  grounds,  it 
was  evident,  that  there  would  not  be  nearly  enough  money  left 
at  the  disposal  of  the  Regents  to  build  the  College  of  Letters 
in  so  expensive  a  style,  or  of  so  costly  material. 

The  architect,  who  had  received  some  $7,000  for  his  ser- 
vices, estimated  the  cost  of  a  second  building,  of  the  same 
style  and  material  as  the  first,  at  $150,000!  To  build  it  in 
wood,  with  brick  basement  walls,  he  estimated  would  cost 
twenty-five  per  cent,  less,  or  $112, 500. 

The  Regents,  with  the  College  of  Agriculture  before 
their  eyes,  less  in  size  and  costing  $200,000,  feared  that 
$150,000  would  not  build  the  second  building  in  the  same 
style. 

Dr.  Merritt  insisted  that  a  good  enough  building  of  wood 
could  be  build,  of  the  proposed  dimensions,  for  $25,000  less 
than  the  architect's  estimate  —  which  would  make  it  cost 
$87,500. 

The  Regents  were  very  willing  to  erect  a  wooden  build- 


12 

ing,  if  it  could  be  done  at  that  figure;  and  they  adopted  the 
suggestion  of  a  wooden  building,  relying  upon  Dr.  Merritt's 
judgment,  and  with  the  understanding  that  he  was  to  give 
his  personal  attention  to  the  construction  of  the  building, 
and  be  measurably  responsible  for  its  being  built  within 
this  estimate  of  its  cost. 

Time  pressed,  President  Oilman's  zeal  had  inspired  the 
Board  with  a  strong  desire  to  complete  the  College  of  Letters 
in  time  to  commence  the  College  year  of  1873-4,  at  Berke- 
ley, and  not  to  remain  another  year  at  their  temporary 
quarters  in  Oakland.  At  the  very  meeting  at  which  a  wooden 
building  was  determined  upon,  Dr.  Merritt  was  authorized 
by  his  brother  Regents  to  order  by  telegraph  from  Puget 
Sound,  the  rough  lumber  needed  for  its  erection,  it  being- 
then  impossible  to  procure  the  long  lengths  needed 
either  in  Oakland  or  San  Francisco.  He  ordered  it  at 
once.  Before  it  arrived  the  Kegents  had  their  attention 
called  by  their  Secretary,  (Mr.  Moulder),  to  the  statute 
which  required  them  to  build  by  contract,  instead  of  leaving 
it  optional  with  them,  as  they  had  supposed. 

Proposals  for  building  the  College  of  Letters  by  contract 
were  at  once  invited  by  advertisement,  and  the  contract  was 
awarded  to  Messrs,  Power  &  Ough,  at  the  price  of  $83,750; 
their  bid  being  $150  lower  than  that  of  Mr.  Mayberry,  the 
only  other  bidder  on  the  whole  contract.  The  contract  was 
signed,  May  13th,  1873,  and  the  building  was  to  be  com- 
pleted by  the  twentieth  of  September,  following. 

A  vital  question  in  this  investigation  is,  what  were  the 
requirements  of  that  contract  ? 

When  a  wooden  building  was  determined  upon,  it  be- 
came necessary,  of  course,  to  change  the  plans  and  specifi- 
cations accordingly. 

Dr.  Merritt,  who  took  the  laboring  at  the  request  of  the 
Board,  and  by  authority  of  its  express  resolution,  applied 
to  Mr.  Farquharson  to  set  his  price  for  making  the  necessary 
changes.  He  said  he  should  charge  $2,000,  and  $1,000  ad- 
ditional, if  he  should  superintend  the  construction  of  the 
building. 

The  Doctor  did  not  desire  to  get  so  much  ' '  architect  " 
as  that  into  the  building,  and  made  the  same  application  to 


13 

;\  Mr.  Ball,  an  Oakland  architect,  who  lias  testified  as  an 
expert  in  this  case.  His  price  was  $1,000.  When  this  was 
objected  to,  he  gently  reminded  Dr.  Merritt  that  he  might 
as  well  pay  him  liberally,  as  the  money  would  come  out  of 
the  University  funds,  and  not  out  of  the  Doctor's  own 
pocket.  Had  the  Doctor's  vision  not  been  so  obtuse  that  he 
could  not  "see  it,"  possibly  there  would  have  been  one  less 
witness  against  him ! 

Mr.  Newsom,  a  very  competent  architect,  of  San  Fran- 
cisco, was  next  applied  to.  He  agreed  to  do  the  work  for 
$300. 

The  original  plans  and  specifications  were  handed  to 
him,  with  directions  to  make  them  over,  with  the  necessary 
changes  to  suit  them  for  •'  a  good,  plain  wooden  building, 
"  with  brick  walls  for  the  basement — to  correspond  in  ex- 
*'  ternal  appearance,  as  nearly  as  may  be,  with  the  College 
"  of  Agriculture." 

The  work  was  done  satisfactorily,  the  plans  and  specifi- 
cations were  handed  to  Doctor  Merritt,  who  placed  them  in 
the  hands  of  J.  W.  DUNCAN,  the  University  Superintendent 
of  construction,  with  orders  to  let  no  one  have  them  with- 
out a  written  order  from  Doctor  Merritt.  This  is  proved; — 
he  himself  does  not  deny  it.  He  says  he  gave  them  to 
POWER  &  OUGH;  but  admits  that  he  never  received  orders 
jroin  any  one  so  'to  do  ! 

It  is  proved  by  Mr.  Miller,  who  did  the  mill-work  for  the 
building,  and  was  thus  in  constant  communication  with 
them  as  the  work  progressed,  that  the  contractors  (P.  &  O.) 
never  used  the  original  plans,  but  only  traced  copies,  which 
they  left  with  him,  and  which  he  produces. 

The  contractors,  in  their  letters  deny  having  had  the 
originals  of  either  plans  or  specifications, — and  no  one  but 
Duncan  pretends  to  have  seen  them  in  their  hands.  In 
saying  he  did  give  them  to  the  contractors,  Duncan  admits 
a  grave  breach  of  trust  on  his  own  part  His  misstatements 
under  oath  upon  other  points  to  which  I  shall  call  attention, 
are  so  plainly  shown  by  the  testimony  of  "  a  cloud  of  wit- 
nesses ",  that  clearly  no  weight  can  be  given  to  his  declara- 
tions on  any  point.  * '  False  in  one,  false  in  all  ". 

He  and  his  fellow-conspirators  insinuate  that  these  papers 


14 

were  destroyed  by  Power  &  Ough  to  conceal  their  fraud. 
We  charge  directly  that  they  are  suppressed  by  Mr.  Dun- 
can, as  a  part  of  the  conspiracy  to  change  the  government 
of  the  University,  and  so  bring  back  Mr.  Duncan  to  his  fat 
berth, — under  the  new  regime.  With  these  papers  sup- 
pressed, it  was  easy  for  him  to  swear  to  any  pretended  re- 
quirements of  the  specifications,  and  to  claim  the  existence 
of  fraud  in  that  such  pretended  requirements  were  not  com- 
plied with. 

It  seems  a  preconcerted  thing  that  all  the  swift  witnesses 
against  Dr.  Merritt  should  swear  that  the  specifications  for 
the  College  of  Letters  were  the  same  as  for  the  College  of 
Agriculture,  except  the  substitution  of  wooden  walls  for 
brick  above  the  basement. 

The  extreme  improbability  of  this  is  shown  by  the  fact 
that  Mr.  Farquharson  estimated  the  cost  of  a  building  con- 
siderably smaller,  to  be  built  according  to  such  specifica- 
tions, at  $112,500;  and  when  did  an  architect  ever  over  esti- 
mate the  cost  of  a  building  !  The  only  two  bids  made  for 
constructing  the  building,  as  an  entirety,  went  below 
$84,000. 

Is  it  conceivable  that  these  bids  could  be  for  the  erection 
of  a  building  estimated  by  so  experienced  an  architect  as 
Mr.  Farquharson,  to  cost  $28,000  more? 

But  if  we  bear  in  mind  the  disgust  of  the  Regents,  and 
especially  of  Dr.  Merritt,  at  the  throwing  away  of  money  in 
the  College  of  Agriculture  upon  laurel-wood  newell-posts 
stuck  in  wherever  there  was  a  chance  for  one, — upon  carving, 
scroll-work, — upon  wainscotting  "glued  together,  making 
"  panels  from  eleven  to  eighteen  inches  from  centers,  with 
"  convex  corners,  and  raised  or  lipped  mouldings  broke 
"  around  them,  and  also  glued  on,  and  four  rosettes  in  the 
"  corner  of  each  pannel,  together  with  heavy  cap  and  base 
' '  mouldings,  and  finishes  to  correspond,  and  turned  termi- 
"  nal  blocks  at  the  openings,  to  receive  the  lap-finish,  all 
"  smoothed  and  cleaned  up  ",  &c.,  &c.,  we  shall  understand 
why  Mr.  Newsome's  directions  were  to  draw  specifications 
for  a  plain  wooden  building, — and  why  the  finish  of  the 
College  of  Letters  on  the  inside  is  less  elaborate  and  less 
expensive  than  that  in  the  College  of  Agriculture,  without 


15 

having  to  conjure  up  any  fraud  in  the  matter.  The  evidence 
shows  clearly  that  it  was  not  intended  to  finish  the  new 
building  as  expensively  on  the  inside  as  the  first  building 
was  finished.  The  object  was  to  get  a  good,  but  cheap  build- 
ing. And  it  is  in  testimony  that  the  object  sought  for  by 
Dr.  Merritt  in  many  of  the  changes  from  the  original  plan, 
was  to  give  more  room  without  additional  expense.  How 
well  he  succeeded,  let  those  judge,  who  have  visited  the 
large,  light,  airy  rooms,  and  broad  halls  of  the  College  of 
Letters,  and  have  contrasted  that  building  with  the  College 
of  Agriculture. 

The  only  testimony  which  goes  to  show  that  the  inside 
finish  of  the  two  buif dings  was  to  be  the  same  in  style,  is 
based  upon  mere  recollection,  after  an  interval  or  nearly  a 
year.  Mr.  Mayberry,  who  put  in  a  bid  against  Power  & 
Ongh,  says  the  finish  was  to  be  the  same,  and  in  response  to 
Mr.  Ten-ill's  leading  questions  gives,  and  pretends  to  give 
all  the  minutice, — how  many  nails  to  a  lath,  and  how  many  to 
a  flooring  board, — how  the  panels  and  mouldings  of  the 
wainscot  were  required  to  be; — but  he  cannot  tell  how  many 
houses  he  has  built  within  the  last  two  years  !  A  memory 
so  remarkably  retentive  as  to  these  trivial  details,  and  so 
sieve-like  on  much  larger  matters,  is,  to  say  the  least,  sub- 
ject to  suspicion.  And  where  its  possessor  was  a  disap- 
pointed bidder,  and  shows  a  very  malignant  temper  towards 
the  contractors  and  Dr.  Merritt,  his  statements  should  cer- 
tainly be  taken  with  some  allowance. 

Messrs.  Wolf  and  Ball, — who  assume  to  appraise  the  vari- 
ations from  the  specifications, — admit  that  they  never  saw 
either  plans  or  specifications, — nor  did  Messrs.  Doyle,  Gray 
&  Mahoney.  The  whole  assumption  that  the  interior  finish 
of  the  two  buildings  was  to  be  alike,  rests  upon  the  testi- 
mony of  Duncan,  whose  testimony  in  other  matters  is  proved 
to  be  false, — and  that  of  Mayberry, — who  sought  the  con- 
tract, did  not  get  it,  and  believed  that  he  was  cheated  out 
of  it  by  the  man  against  whom  he  testifies. 

One  little  circumstance  shows  the  unreliable  nature  of 
mere  recollection  on  such  matters.  Both  these  witnesses 
and  Farquharson  the  architect  swore  plumply,  that  the  wain- 
scotting  of  the  College  of  Agriculture  was  mortised  and 


16 

tennoned;  and  one  of  your  own  number  stated  the  same 
thing  during  one  of  your  sessions.  It  was  assumed  that  the 
same  style  of  work  was  called  for  in  the  College  of  Letters, 
and  the  extra  expense  of  the  mortising  and  tennoning  was 
shown  to  be  fifty  cents  per  foot.  Yet,  in  the  face  of  these 
positive  statements,  it  is  proved  that  the  wainscotting  in  the 
College  of  Agriculture  is  not  mortised  and  tennoned,  and 
the  fact  had  to  be  conceded. 

Mr.  Farquharson  then  swore  positively  that  the  specifica- 
tions for  the  College  of  Agriculture  called  for  the  wainscot 
to  be  mortised  and  tennoned.  He  was  requested  to  exam- 
ine the  specifications, — did  so, — and  had  to  admit  that  his 
recollection  was  erroneous. 

.  So  much  for  these  men  who  are  willing  to  swear  away  the 
reputation  of  honest  men,  on  their  recollection  of  the  con- 
tents of  documents  after  the  lapse  of  nearly  a  year,  since 
their  inspection.  This  one  item  makes  a  difference  of  over 
thirteen  hundred  dollars  ! 

I  assume  then  that  it  is  not  proved,  nor  is  there  reason 
to  believe,  that  the  specifications  drawn  by  Mr.  Newsome 
for  the  College  of  Letters,  called  for  the  same  inside  finish 
as  that  in  the  College  of  Agriculture.  And  this  sweeps 
away  at  one  breath  the  monstrous  estimates  made  by  Messrs, 
Wolf,  Ball,  and  Mayberry,  of  the  lessened  value  of  the 
building  by  reason  of  alleged  departures  from  the  specifica- 
tions,— as  well  as  much  of  the  estimate  similarly  made  by 
Messrs.  Doyle,  Gray  and  Mahoney. 

Let  us  now  examine  in  detail  the 

OMISSIONS    AND    SUBSTITUTIONS 

of  which  so  much  has  been  said.  It  seems  to  be  assumed 
that  no  allowance  was  made  by  the  contractors  for  the  mat- 
ters omitted,  which  were  called  for  by  the  specifications, — 
but  that  these  omissions  had  been  concealed  and  were  only 
just  now  discovered  through  this  investigation !  No  allusion  is 
made  to  the  fact,  that  the  sum  of  eleven  thousand  five  hundred 
and  thirty-two  dollars  was  allowed  by  the  contractors  for  these 
very  omissions  and  changes  favorable  to  them.  I  will  show 
by  the  testimony  of  the  very  witness  brought  to  testify 
against  my  client,  that  this  amount  very  nearly  covers  all  the 


17 

changes  made,  even  admitting  that  the  inside  finish  of  the 
two  buildings  was  to  be  the  same. 

CHANGES   AUTHORIZED   BY   DE.    MEEEITT. 

The  changes  ordered  by  Dr.  Merritt  with  the  approval  of 
President  Gilman,  and  by  him  reported  to  the  Board  of 
Regents,  which  lessen  the  expense,  are  as  follows : 

Four  Iron  Girders  omitted;  the  floor  timbers  being  in- 
dividually trussed  and  a  wooden  girder  held  in  place  by  an 
inverted  truss  of  iron  rods,  being  substituted. 

Frear  Stone  Caps  and  Sills  omitted  from  basement  win- 
dows, because  they  could  not  be  obtained  in  time.  Brick 
arches  were  substituted  for  the  caps,  and  Redwood  sills  for 
the  Frear  stone. 

Two-coat  Plastering  was  substituted  for  three-coat;  the 
object  being  to  save  enough  thus  to  get  the  wing  chambers 
of  the  Mansard  finished  (originally  planned  not  to  be  finish- 
ed), without  any  addition  to  the  aggregate  cost  of  the 
plastering. 

Some  of  the  Cornice  was  omitted  from  the  main  halls  for 
the  same  reason. 

One  coat  of  paint  and  two  of  sand  were  omitted  from  the 
outside,  because  it  was  believed  to  be  absolutely  better  to 
put  on  only  three  coats  of  paint,  than  to  put  on  four  coats  of 
paint  and  two  of  sand  in  so  short  a  time  on  a  new  building. 
All  the  experts  agree,  that  if  four  coats  of  paint  and  two  of 
sand  had  been  put  on  in  the  short  time  allowed,  it  would 
have  blistered  and  peeled  badly,  and  at  this  time  would  not 
be  in  so  good  a  condition  as  it  is  now  in. 

The  platform  in  Prof.  Le  Conte's  room  was  omitted,  be- 
cause the  Professor  was  not  then  ready  to  say  how  he  wished 
it  arranged.  The  columns  and  balustrade  for  the  same  room 
were  got  out  by  the  contractors  and  turned  over  to  the  Uni- 
versity, and  put  up  after  the  platform  was  built. 

Eedwood  was  substituted  for  White  Cedar  in  the  interior 
finish,  because  seasoned  cedar  could  not  then  be  found  in 
m  arket. 

Galvanized  Iron  Conductors  (not  Tin  as  falsely  stated  by 
one  witness)  were  substituted  for  Cast-iron,  as  being  more 
suitable  for  a  wooden  building. 
3 


18 

For  the  same  reason,  and  for  the  sake  of  economy,  a 
Wooden  balustrade  or  cresting  was  substituted  for  Iron,  on 
the  deck  of  the  roof. 

Black  Walnut  was  substituted  for  Laurel  in  the  stair- 
balustrade,  as  being  cheaper,  and  quite  as  good. 

NO  OTHEE  CHANGES  AUTHOKIZED. 

Dr.  Merritt  testifies  that  he  knew  of  no  other  deviations 
from  the  specifications  or  plans,  making  the  building  less 
expensive.  He  neither  ordered  nor  consented  to  any  other. 
As  these  could  not  amount  to  more  than  $4,000  to  $5,000  at 
the  outside,  he  considered  the  balance  of  the  $11,532  allow- 
ed by  the  contractors  for  "  saving  by  alterations  ordered  by 
"the  Building  Committee  and  contributions  to  the  Univer- 
''sity  by  the  contractors,"  as  coming  under  the  latter  head; 
a  contribution  to  the  University,  by  the  contractors,  of  their 
profits  over  and  above  reasonable  compensation  for  their 
services,  according  to  their  original  verbal  agreement  with 
him  to  that  effect  made  when  they  signed  the  contract.  He 
never  examined  the  specifications.  He  deemed  the  architect 
who  drew  them  far  more  competent  than  himself  to  make 
them  what  they  should  be,  after  being  told  in  general  terms 
what  was  wanted. 

Nor  did  he,  nor  could  he  personally  watch  the  details  of 
the  construction  of  the  building;  for  he  was  not  a  carpenter, 
plumber,  painter,  mason  or  stair-builder. 

DUNCAN   EMPLOYED   TO   WATCH   CONTRACTORS. 

Mr.  J.  W.  Duncan,  an  experienced  builder,  was  employ- 
ed by  the  Regents  at  $200  per  month  as  their  Superintend- 
ent of  Construction,  for  no  other  purpose  than  to  see  to  it 
that  the  two  Colleges — of  Agriculture  and  Letters — were 
built  according  to  the  specifications,  both  as  to  workmanship 
and  material. 

Dr.  Merritt's  instructions  to  Duncan  were  not  to  stop  the 
contractors,  if  he  should  see  anything  wrong  in  either  re- 
spect, for  time  pressed,  but  to  notify  him,  Dr.  Merritt,  at 
once  of  any  change  made  without  his  authority. 

DUNCAN  GAVE  NO  NOTICE  OF  OTHER  CHANGES. 

Duncan  admits  that  he  never  did  notify  Dr.  Merritt  that 


19 

the  contractors  made  one  single  deviation  from  the  plans  or 
specifications,  other  than  those  which  Dr.  Merritt  has  speci- 
fied in  his  report,  and  that  Dr.  Merritt  never  notified  him 
that  any  other  change  for  the  cheaper,  was  consented  to  by 
the  Building  Committee  or  himself. 

If  the  other  alleged  changes  were  made  without  authority 
of  Dr,  Merritt  or  the  Building  Committee,  as  Duncan  now 
says,  and  if  Mr.  Duncan  (as  he  now  testifies)  knew  that  such 
changes  were  being  made,  whereby  the  contractors  unjustly 
took  from  the  State  several  thousand  dollars  —  then  Mr. 
Duncan  was  false  to  his  trust,  and  a  traitor  to  his  employ- 
ers. As  regards  his  own  reputation,  it  does  not  matter 
much  whether  he  is  to  be  viewed  in  that  light,  or  as  a  per- 
jured witness.  One  or  the  other  he  certainly  is. 

In  any  event,  Dr.  Merritt  is  entirely  exonerated  from 
blame.  He  depended,  as  he  had  a  right  to  do,  upon  Mr. 
Duncan  who  had  in  his  possession  the  plans  and  specifica- 
tions, and  was  hired  to  be  the  watch-dog  of  the  Kegents,  to 
watch  the  actions  of  the  contractors,  and  see  that  they  ful- 
filled their  contract  in  all  respects.  It  was  not  the  business 
of  Dr.  MerriU,  or  of  any  one  of  the  Regents,  to  climb  up  among 
the  roof-timbers  and  ascertain  whether  the  "jack-rafters"  had 
one  nail  or  two;  or  to  notice  ivhether  the  laths  had  four  nails 
each,  or  Jive.  Mr.  Duncan  was  hired  for  that  very  purpose. 
There  is  an  old  saying,  that  a  man  ' '  should  not  keep  a  dog 
and  bark  himself." 

NO  PROFIT  TO  CONTRACTORS  BY  CHANGES. 

But  we  shall  find  on  examination,  that  the  allowance 
made  by  the  contractors  would,  within  a  trifling  sum,  cover 
the  amount  saved  by  omissions  and  changes,  even  if  it  were 
admitted  that  the  specifications  were  departed  from  in  all 
the  particulars  charged.  The  difference  in  the  expense  has 
been  greatly  exaggerated. 

DISAGREEMENT   OF   WITNESSES. 

• 

It  is  especially  noteworthy,  that  hardly  any  two  estimates 
on  this  matter  agree,  or  even  approach  each  other — either  as 
to  the  points  of  difference  in  the  finish  of  the  two  buildings, 


20 

or  the  amount  of  difference  in  the  cost  made  by  any  of  the 
alleged  departures  from  the  specifications. 

One  witness,  or  set  of  experts,  testifies  to  one  list  of 
omissions  and  changes;  another,  to  another.  For  one  omis- 
sion, one  set  of  experts  figure  one  price;  another  estimates 
it  at  one-third  as  much. 

FIGURING  BY   WOLFE,    BALL   AND   MAYBERRY. 

These  original  experts  figured  the  omissions  up  to 
$20,000! 

WINDOW   AND   OTHER   OUTSIDE   FINISH. 

Of  this,  $5,460  was  figured  up  as  omitted  from  the  out- 
side finish:  windows,  pilasters,  cornice,  etc. 

But  the  accidental  discovery  of  the  traced  copies  of  the 
front  and  end  elevations,  produced  by  Mr.  Miller,  with  his 
testimony  on  the  matter,  shows  that  the  finish  of  the  build- 
ing, as  it  stands,  is  almost  precisely  as  called  for;  certainly 
not  less  expensive.  This  strikes  out  nearly  $5,500  from 
their  aggregate,  "at  one  fell  swoop." 

WAINSCOT. 

They  estimate  the  wainscoting  (1,790  feet)  at  two  dollars 
per  foot  less  than  called  for  by  the  specifications — assuming 
them  to  call  for  the  same  as  in  the  College  of  Agriculture. 

Messrs.  Doyle,  Gray  and  Mahoney  (the  experts  employed 
by  the  committee)  allow  for  this,  one  dollar  per  foot.  As 
these  last  experts  supposed  the  wainscoting,  in  the  College 
of  Agriculture,  to  be  mortised  and  tenoned,  when  they  made 
their  comparison,  their  estimate  must  be  still  farther  re- 
duced half  a  dollar  per  foot:  for  it  is  proved,  as  I  have 
shown,  that  the  wainscotting  in  the  last-named  building  was 
not  mortised  and  tenoned,  and  that  it  is  worth  half  a  dollar 
less  per  foot  than  if  so  made. 

This  strikes  off  $2,662.50  additional  from  the  $20,000. 

The  Wolfe  crowd  estimate  the  difference  in 

HARDWARE 

At  $2,500,  and  Mr.  Wolfe's  letter  says  they  might  just  as 
well  put  it  at  $3,500!  I  quite  agree  with  him  that  there  is 
no  limit  to  his  power  of  "marking  up,"  when  deemed 
necessary,  in  order  to  injure  Dr.  Merritt. 


21 

But  the  experts  employed  by  the  committee,  cut  this 
item  clown  to  $1,270— a  reduction  of  $1,230. 

Mr.  Wolfe  and  his  associates  say  the  stairs  are  worth 
$4,667  less  than  if  built  as  called  for,  like  those  in  the  Col- 
lege of  Agriculture. 

Mr.  Duncan  estimates  this  difference  at  $500.  But  as  he 
has  forfeited  all  claim  to  be  believed,  even  when  he  speaks 
the  truth,  we  will  adopt  the  estimate  of  Mr.  Blair,  who 
built  the  stairs  for  Power  &  Ough,  and  who  put  in  a  bid, 
originally,  to  build  the  stairs  as  specified.  He  figures  the 
difference  at  $3,500— a  reduction  of  $1,167. 

Allowing  the  balance  of  the  estimate  of  Wolfe  and  others 
to  be  correct,  we  have  now  established,  by  irrefragable  evi- 
dence, that  we  should 

DEDUCT   FROM   THEIR   ESTIMATE    $10,519    50 

For  these  four  items  alone;  or  more  than  half  the  $20,000 
sworn  to  by  them  as  pocketed  by  the  contractors,  by  dis- 
regarding the  specifications. 

It  can  hardly  be  worth  while  to  examine  farther  an  esti- 
mate so  recklessly  made. 

Msssrs.  DOYLE,  MAHONEY,  and  GRAY,  estimate  the  omis- 
sions and  substitutions  of  cheaper  work  and  material  at 
$12,112.87;  presuming  that  the  inside  finish  was  to  be  like 
that  in  the  other  building, 

But  they  make  the  difference  in  the  wainscoting  half  a 
dollar  per  foot  (or  $1,037.50)  too  great,  as  just  now  shown 
by  me. 

They  estimate  the  difference  in  flooring  at  least  five  hun- 
dred dollars  higher  than  the  testimony  of  other  witnesses, 
on  a  thorough  cross-examination,  shows  it  to  be. 

They  figure  the  difference  in  the  stairs,  etc.,  over  $1,500 
higher  than  does  Mr.  Blair,  who  built  them.  The  difference 
of  $90,  estimated  in  nails,  is  more  than  offset  by  those  used 
in  spiking  on  scantling  to  truss  the  beams  in  the  South 
wing,  of  which  they  admit  they  were  not  aware. 

The  estimate  for  omitting  the  "  furring  down  cove  ceiling, 
$150, "  should  not  be  allowed,  for  it  certainly  cost  more  to 
fur  on  the  studs,  than  it  would  to  fur  on  the  rough  inside 
boarding,  had  that  been  put  on.  The  other  items 


22 

The  Plain  Wainscoting $4500 

126  windows  in  first,  second,  and  attic 378  00 

22  single  doors     110  00 

11  pair  double  doors 88  00 

1000  feet  hip  and  deck  drapery 150  00 

We  were  not  allowed  to  cross-examine  the  witnesses  upon, 
and  consequently  we  cannot  know  Avhether  the  estimate 
thereon  is  well  founded,  or  even  what  the  items  mean.  There 
is  certainly  no  evidence  in  the  case  showing  any  omission  or 
change  for  the  cheaper,  in  any  of  these  matters. 

Lest  there  should  be  any  lingering  suspicion  left,  that 
there  were  changes  and  omissions  which  put  money  into  the 
contractors'  pocket,  we  will  now  submit  a  table  of  all  the 
changes  claimed  to  have  been  made  from  the  plans  and 
specifications,  which  made  the  building  cheaper,  with  the 
value  of  each  set  opposite;  that  value  being  generally  esti- 
mated by  witnesses  called  to  testify  against  Dr.  Merritt,  and 
the  Kegents : 

ALLEGED  CHANGES  FOR  THE   CHEAPER. 

IRON  GIRDERS,  omitted $1,700  00 

CAPS  and  SILLS  to  Basement  windows.  Brick 
arches  and  Redwood  sills  substituted  for  Frear 
Stone,  (Perine's  testimony),  40  windows  at  $9 

each 360  00 

Two  COAT  PLASTERING,  substituted  for  three  coat, 
7.165  yds.  (estimated  by  Doyle  and  others)  at 

10  cts.  (Duncan's  estimate) 716  50 

CORNICE  in  MAIN  LOWER  HALLS  omitted :  312  feet, 

at  50  cts 156  00 

ONE  COAT  OF  PAINT  and  Two  OF  SAND  omitted  on 
outside:  say  2,200  yds.,  estimated  by  Farwell 

at  30  cts.. 660  00 

PLATFORM  IN  PROF.  LE  CONTE'S  ROOM, — say $    100  00 

(For  the  difference  between  Redwood  and  Cedar 
for  inside  finish,  I  allow  nothing.  The  cedar 
would  cost  $20  per  M.  more,  and  some  more  labor  in 
working.  But  this  is  fully  offset  by  the  extra  ex- 
pense of  painting  and  graining  the  redwood;  as 
the  cedar  would  only  be  varnished.) 
GALVANIZED  CONDUCTORS, — for  cast  iron:  say 75  00 


23 

WOODEN  CRESTING  on  deck  of  roof,  substituted  for 

iron ;  not  over . .  500  00 


$4,267  50 

These  are  all  the  departures  from  the  specifications  or- 
dered or  consented  to  by  Dr.  Merritt  (as  the  testimony 
shows),  or  which  he  knew  to  be  charged  to  exist,  until  this 
investigation.  He  has  no  reason  to  believe,  and  does  not 
believe  that  other  changes  were  made. 

But  that  the  committee  may  see  how  great  a  bug-bear  has 
been  spirited  up  by  reckless  witnesses  and  sensational  head- 
ings in  newspaper  reports,  I  will  add  the  other  alleged 
changes,  with  the  amount  of  each,  similarly  estimated. 

STAIRS,  as  estimated  by  Mr.  Blair $  3,500  00 

DIFFERENCE  in  FLOORING  (at  Doyle  &  Go's  estimate, 

evidenly  $500,  too  high) 1,521  87 

DIFFERENCE  in  OUTSIDE  SHEATING,  est.  by  same . .       362  00 
"   HARDWARE,  "     "      "    ..   1,27000 

"   NAILS,  $90,— (this  I  omit,   for  rea- 
sons already  given.) 

ROUGH  BOARDING  in  ATTIC, — (est.  by  Doyle  &  Co.)       150  00 
FURRING  DOWN  COVE  CEILING,  $150, — (omitted  for 

reasons  already  given.) 

DIFFERENCE  in    WAINSCOTING  2,075   FEET, — (est. 
by  Doyle  &  Co.,  $2,075,) — deduct  50  cts,  per 

foot,  for  reasons  heretofore  given    1,037  50 

PLAIN  WAINSCOTING,— (Doyle  &  Co.) 45  00 

126  WINDOWS  @  $3 378  00 

22  SINGLE  DOORS  @  $5 110  00 

11  DOUBLE  DOORS  @  $8 88  00 

1000  FEET  HIP  and  DECK  DRAPERY.  150  00 


$8,612  37 
Add  to  this  the  changes  for  the  cheaper  ordered 

by  Dr.  Merritt :    $4,267  50 

Total  of  omissions,  &c $12,870  87 

The  amount  allowed  by  the  contractors  for  omis- 
sions and  contribution  to  University,  as  be- 
fore stated,  is..  .  11,532  00 


DISCREPANCY $  1,347  87 


24 

This,  mind  you,  is  upon  the  assumption  that  the  specifi- 
cations called  for  inside  finish  like  that  in  the  College  of 
Agriculture.  The  $20,000,  $30,000,  and  $40,000  bubble,  in 
being  picked,  shrinks  down  to  $1,347.87. 

THE    "EXTRAS." 

Under  the  clause  in  the  contract  authorizing  changes  to 
be  made  bj  the  Building  Committee  in  the  plans  and  style 
of  construction,  as  the  building  progressed,  other  altera- 
tions were  made  at  the  suggestion  of  Doctor  Merritt  and 
President  Gilman,  approved  in  most  cases  ]by  the  Building 
Committee  and  the  active  Eegents,  before  being  carried  out. 
I  believe  there  is  not  one  of  them  but  is  universally  admit- 
ted to  have  been  wisely  done. 

LENGTHENING  THE   HALLS. 

As  originally  planned  by  Mr.  Farquharson,  the  stairway  in 
each  hall  would  have  been  very  much  in  the  way  of  the  en- 
trance in  the  east  side  of  the  building — as  is  the  case  with 
the  College  of  Agriculture.  In  that  building,  wide  doors 
directly  facing  the  steps  leading  up  to  the  porch,  are  ren- 
dered impracticable  by  the  staircase  being  in  the  way;  and 
the  subterfuge  had  to  be  adopted — of  two  pairs  (apparently) 
of  double  doors,  one  pair  of  which  are  dummies.  To  enter 
the  hall,  from  the  outside  steps,  one  has  to  bear  away  to  the 
left  as  he  crosses  the  outside  porch,  and  "sneak"  in,  as  it 
were,  through  the  narrow  doorway,  on  one  side  of  the  hall. 

By  lengthening  the  halls  four  feet  on  each  side  of  the 
building,  the  builders  were  enabled  to  place  broad  doors  in 
the  centre  of  the  end  of  the  halls,  directly  in  front  of  the 
outside  steps  leading  up  to  the  portico,  He  who  doubts  the 
wisdom  of  this  change,  is  invited  to  compare  the  two  build- 
ings in  this  respect. 

Before  Dr.  Merritt  could  get  the  consent  of  the  Eegents 
to  this  change,  the  basement  walls  were  already  up,  and,  of 
course,  there  was  extra  expense,  for  that  reason,  in  making 
the  alteration.  For  thus  extending  these  halls  four  feet  at 
each  end  (equal  to  adding  to  the  four  towers,  each,  a  space 
eighteen  feet  wide,  four  feet  deep,  and  seventy  feet  high — say 
5,040  cubic  feet — with  three  floors  and  four  ceilings,  each, 


25 

four  by  eighteen  feet,  added  on  each  tower)  the  contractors 
charged  and  received  $2,000 — about  ten  cents  per  cubic  foot. 

Wolfe  and  colleagues  estimated  this  at  nine  hundred  and 
twenty  dollars;  about  four  and  a  half  cents  per  cubic  foot  ! 
The  value  of  the  whole  building,  as  estimated  by  Messrs. 
Gaynor  &  Williams,  Wright,  King  and  others,  amounts  to 
about  fifteen  cents  per  cubic  foot. 

As  we  were  not  allowed  by  the  committee  to  thoroughly 
cross-examine  their  experts  (Doyle  and  others)  on  the  items 
which  made  up  the  cost  of  this  extension,  I  cannot  present 
the  matter  in  detail;  but  I  call  the  committee's  attention  to 
the  fact  that  Mr.  Doyle  estimates  (p.  793)  the  cost  of  the 
mere  brick  work  in  the  basement  wall  necessitated  thereby, 
at  $430;— nearly  half  the  whole  amount  ($920)  allowed  by 
Wolfe  &  Co.,  for  the  extension  through  three  stories,  base- 
ment and  tower  ! 

WIDENING   THE   PORCHES. 

The  four  porticoes,  or  porches,  were  originally  planned 
like  those  of  the  College  of  Agriculture.  Having  seen  the 
mean  appearance  of  these  last,  the  Building  Committee  de- 
termined to  increase  the  width  of  those  on  the  new  building, 
from  twelve  feet  to  twenty.  Those  wrho  have  seen  the  two 
buildings  need  no  argument  to  convince  them  of  the  proprie- 
ty of  this  change. 

For  this  work  the  contractors  charged  and  received  $600. 
I  admit  that  it  is  a  rather  unusual  trait  in  contractors;  but 
the  evidence  shows  conclusively,  that  they  did  not  charge 
half  enough  for  this  job  !  Rather  than  believe  that  the  con- 
tractors would  intentionally  do  a  thing  which  would  so  dis- 
credit them  among  those  of  their  own  profession,  as  to  charge 
too  little  for  an  "extra,"  I  must  assume  that  they  made  a 
gross  mistake  in  the  matter. 

Even  Doyle  &  Co.,  say  this  was  worth  at  least  $800. 
But  their  estimate  of  mill  work  is  very  much  below  that  of 
Mr.  Miller, — a  mill-man  of  over  a  dozen  years'  experience 
here, — who  actually  did  that  work  for  the  contractors.  Sub- 
stituting his  estimate  of  the  mill-work  for  theirs,  the  cost  of 

widening  the  four  porches,  comes  fully  up  to  his  estimate 
4 


26 

made  with  great  care,  thoroughness,  and  accuracy  of  detail; 
—over  $1,400. 

"  EXPERTS"  WOLFE,  BELL,  AND  MAYBEBBY. 

After  examining  his  estimate  and  that  of  Doyle  and  Ma- 
honey,  on  this  item,  the  estimate  of  Wolfe,  Ball,  and  May- 
berry,  on  the  same  point  becomes  simply  ludicrous.  They 
allow  one  hundred  and  sixty  dollars  for  the  job!! 

The  testimony  of  Wolfe  &  Co.,  the  committee's  experts, 
shows  that  the  eight  extra  columns  necessitated  by  the 
change,  would  alone  cost  more  than  that  sum; — -and  that  the 
extra  brick  work  in  the  basement  wall  used  in  the  widening 
of  the  four  porches,  must  have  cost  over  two  hundred  dollars  ! 
The  extra  mill-work  alone  called  for  by  the  change,  (includ- 
ing the  columns)  Miller  swears  is  worth  fully  one  thousand 
dollars. 

Mr.  Mayberry  had  opportunity  to  correct  his  testimony 
on  this  point,  being  interrogated  thereon,  when  re-called. 
Buc  with  dogged  obstinacy  and  malignity  he  stuck  to  his 
first  statement,  and  has  thereby  destroyed  whatever  credi- 
bility he  might  otherwise  have  claimed  for  his  entire  testi- 
mony. 

After  this  exhibition  of  their  incompetency,  or  dishon- 
esty (whichever  it  may  be)  in  deliberately  estimating  this 
item  at  less  than  one-eighth  its  real  value,  it  cannot  be 
necessary  to  say,  that  the  evidence  of  Messrs.  Wolfe,  Ball, 
and  Mayberry,  on  all  these  matters  must  be  thrown  away.  It 
is  not  necessary  to  decide  whether  they  show  themselves  in 
the  matter,  to  be  fools,  or  knaves,  or  both.  In  either  case 
their  testimony  can  have  no  weight. 

THE     PIAZZA 

on  the  west  front  of  the  building  was  an  after-thought.  It 
adds  greatly  to  the  beauty  of  the  edifice,  and  is  a  great  con- 
venience by  way  of  furnishing  a  direct  communication  on 
three  floors,  between  the  two  halts,  without  going  through 
the  intermediate  rooms.  When  first  suggested,  the  contrac- 
tors were  asked  its  probable  cost,  and  (after  getting  from 
Mr.  Miller  an  estimate  for  the  mill-work)  they  reported  it  as 
about  $1,500.  They  charged  and  received  $1,575. 


27 

Doyle  &  Co.,  estimate  it  at  $1,041; — but  they  only  allow 
S'553  for  mill-work,  wliile  Miller,  wlio  did  it,  says  it  is  worth 
$940.  He  says  he  estimated  it  carefully  for  the  contractors, 
when  the  Regents  asked  them  its  probable  cost,  at  that  figure, 
and  that  he  is  sure  the  estimate  is  not  too  high.  With  this 
correction,  the  Doyle  estimate  would  come  up  to  $1,428, — 
only  $147,  below  the  amount  paid  the  contractors. 

On  cross-examination,  Mr.  Mahoney,  one  of  the  makers 
of  the  Doyle  estimate,  confessed  he  had  allowed  nearly 
1,500  feet  too  little  for  the  floor  timbers  and  girders,  and 
that  there  might  be  other  inaccuracies,  as  he  had  made  his 
figures  very  late,  the  night  previous. 

So  I  think  we  may  safely  accept  the  contractor's  bill, 
backed  by  Miller's  careful  figures,  as  correct  on  the  value  of 
the  piazza.  For  the 

FOUK  DOORS   OPENING   ON   THE   PIAZZA 

The  contractors  received  $400.     The  Doyle  &  Co.  estimate 
is  $340  for  these. 

Mr.  Miller  swears  that  these  doors,  with  frames,  tran- 
soms, etc.,  making  the  mill  work  complete,  were  worth  $330, 
delivered  on  the  spot,  with  the  necessary  locks,  hinges,  and 
other  hardware.  The  labor  of  fitting  same,  and  putting  up 
the  work  he  says  could  not  be  less  than  ten  dollars  for  each 
door. 

Mr.  Farwell,  who  did  the  work,  says  it  was  worth  half  a 
dollar  per  yard  to  paint,  grain  and  varnish  these  doors  and 
casings,  reckonning  the  molded  casings  at  double  their 
measured  width.  This  made  each  opening  14  feet  high,  and 
6  feet  wide,  painter's  measure,  or  over  nine  square  yards  on 
each  side,  amounting  in  all  to  18  yards,  worth  nine  dollars. 
We  have  then 
4  doors,  casings,  hardware,  glass  transoms,  etc. . .  $330  00 

Carpenters'  work 40  00 

Painting  .  36  00 


An  aggregate  of $406  00 

We  invite  a  close  scrutiny  of  these  figures.  Wolfe,  Ball, 
and  Mayberry  allowed  for  putting  in  these  doors,  etc.,  $240; 
$90  less  than  the  bare  material  and  mill  work  cost ! 


28 

It  cannot  be  necessary  to  go  through  all  the  details  of  the 
"extras"  in  this  argument,  which  is  already  too  long;  Mr. 
Miller  is  the  only  witness  who  has  presented  to  the  Com- 
mittee careful  figures,  made  in  detail  upon  them,  except  the 
painting;  upon  that  Mr.  Farwell  has  given  you  the  details. 
The  other  witnesses  have  presented  to  you  their  conclusions 
in  a  lump,  without  their  figures  in  detail.  Where  allowed 
to  cross-question,  we  showed  important  errors  in  their 
figures,  and  were  soon  cut  short  in  our  cross-examination. 

Messrs.  Miller  and  Farwell  are  the  men  who  did  most  of 
the  work,  except  the  carpenters'  labor,  on  these  extras. 
Their  testimony  is  not  sought  to  be  impeached;  it  is  well 
known  to  be  unimpeachable . 

Upon  the  matters  already  examined,  as  well  as  all  the 
extra  doors,  blinds,  shutters,  etc.,  etc.,  their  testimony  fully 
sustains  the  charges  made  by  the  contractors.  The  large 
sliding  doors  in  the  President's  room,  for  which  $146  is  al- 
lowed by  Doyle  &  Co,,  are  shown  by  their  careful  detailed 
estimates  to  have  cost,  as  they  stand,  at  least  $175,  including 
frames,  architraves,  <fcc. 

For  the  partition,  Doyle  &  Co.,  allow  $85.  Add  to  this 
a  fair  allowance  for  additional  expense  by  reason  of  the  par- 
tition and  doors  being  put  in  as  an  after-thought,  when  the 
building  was  well  along,  and  certainly  there  is  not  much  to 
be  deducted  f  •  om  the  $275,  paid  the  contractors  for  the  par- 
tition and  door;  probably  not  anything. 

Yet  the  Wolfe  party  allow  only  $150,  for  the  doors  and 
partition  ! 

TEN  OTHER  EXTRA  DOORS 

were  put  in  by  the  contractors  at  an  aggregate  charge  of 
$500 .  Mr,  Miller  agrees  with  Doyle  and  friends  in  cutting 
the  cost  down  two  dollars  on  each  of  the  five  doors  on  the 
first  floor,  and  four  dollars  on  each  of  those  on  the  second 
floor.  By  an  accidental  omission  he  seems  not  to  have  giveu 
an  estimate  on  the  attic  doors .  Accepting,  however,  Doyle 
&  Co.'s  estimates  on  them  all,  we  have  $446,  for  the  ten,  in- 
stead of  $500.  Surely  the  $54  of  difference  (a  little  over 
twelve  per  cent,  on  the  admitted  cost)  would  not  be  a  large 
profit  on  the  job. 


29 

FOURTEEN  SETS  WOODEN  WINDOW  SHUTTERS 
were  charged  for  bj  the  contractors,  as  placed  in  Prof.  Ls 
Conte's  room. 

It  is  shown  by  Miller's  testimony  that  after  the  blinds 
for  these  windows  had  been  made  and  put  together,  it  was 
found  that  Prof.  Le  Gonte,  must  have  the  means  to  darken 
completely  his  lecture  room,  in  order  to  give  experiments  in 
his  lectures  on  light,  electricity,  &c.  So,  solid  shutters  were 
ordered  instead  of  the  blinds.  But  the  latter  being  already 
made  by  the  contractors,  and  being  entirely  useless  to  them, 
of  course  they  charged  full  price  for  the  shutters,  as  an 
11  extra'7. 

Messrs.  Wolfe,  Ball,  Mayberry  and  Co.,  say  in  their  wis- 
dom, that  they  allow  nothing  for  this,  because  the  blinds 
would  have  cost  as  much  ! 

It  appears,  also  that  after  the  order  made  for  the  four- 
teen sets  of  shutters  (for  both  rooms)  and  the  making  of  the 
eight  sets  for  the  lecture  room,  it  was  found,  that  the  other 
six  sets  (for  Prof.  Le  Conte's  other  room)  were  not  even  be- 
gun, and  that  they  could  not  (by  reason  of  press  of  busi- 
ness at  the  mill)  be  completed  in  time.  The  order  was 
countermanded  as  to  them,  and  the  blinds  already  made 
were  hung  in  that  room. 

Mr.  Ough  was  the  partner  actually  overseeing  this  work. 
Mr.  Power  kept  the  books  of  the  firm  and  made  their  settle- 
ments. It  is  evident  that  he  was  deceived  by  the  entry  on 
Ough's  memorandum  book  of  this  change  to  shutters, — not 
knowing  of  the  countermanding  of  the  order  as  to  the  six 
sets,  and  so,  in  settlement  he  charged  the  whole  fourteen 
sets  as  "extras".  Here  is  an  evident  mistake  of  six  pair  of 
shutters,  $120, — which  amount  should  undoubtedly  be  re- 
funded by  the  contractors.  That  they  will  cheerfully  do 
this,  none  can  doubt  who  know  them.  I  hope  that  the  sum 
thus  saved  by  discovery  of  the  only  error  shown  to  exist  in 
the  transaction,  may  cover  the  expense  of  the  investigation  ! 

EIGHT   EXTRA    WINDOWS   IN   THE   TOWER, 

are  charged  for  by  the  contractors,  at  $600.     The  tracing  of 
the  front  elevation  shows  that  these  came  by  substituting 


30 

triplet  for  mullioned  windows  in  the  first  and  second  stories 
of  e:ich  tower.  Mr.  Miller  testifies  that  the  change  is  worth 
$75,  to  each  window; — -the  price  charged. 

Doyle  &  Co.,  do  not  mention  these  windows,  and  Wolfe 
&  Co.  allow  $370,  for  them; — a  more  liberal  allowance  than 
they  made  in  most  cases. 

FINISHING   WINGS   IN   THE   MANSARD. 

By  the  original  specifications,  only  the  centre  of  the 
Mansard  was  to  be  finished,  as  the  contractors  claimed. 
They  consented,  however,  to  finish  also  the  halls,  one  on 
each  side  of  this  centre  portion,  as  a  part  of  their  contract, 
on  Dr.  Merritt's  representing  to  them  the  absurdity  of  claim- 
ing that  it  was  intended  to  leave  the  building  so  that  the 
only  access  to  the  finished  portion  of  the  Mansard  should 
be  through  unfinished  halls. 

As  an  after-thought  it  was  determined  also  to  finish  the 
wings  of  the  Mansard;  the  South  wing  into  one  room,  say 
40x60;  and  the  North  wing,  say  30x60,  into  three  rooms. 
For  this  the  contractors  were  paid  $2,000.  This  item  is 
printed  as  if  only  the  one  wing  was  included;  but  the  evi- 
dence shows  clearly  that  both  wings  were  finished  outside 
of  the  contract. 

For  the  larger  wing,  Doyle  &  Co.  allow  $1,312.50,  and 
admit  that  they  allowed  nothing  for  trussing  the  floor  tim- 
bers, a  heavy  item,  of  which  they  knew  nothing.  The  North 
wing,  although  smaller,  being  finished  into  three  rooms, 
would  cost  as  much,  which  would  make  the  aggregate  $2,625, 
besides  the  trussing  of  the  floor  beams! 

I  think  the  explanation  of  this  excess  over  the  price 
charged,  is  to  be  found  in  two  items,  as  far  as  I  can  discover 
from  the  testimony. 

It  is  shown,  by  Miller,  that  if  the  attic  had  not  been 
finished,  the  room  below  was  to  be  made  some  four  feet 
higher.  This  would  make  a  deduction  of  the  expense,  of  four 
feet  of  wall  in  the  attic,  from  the  estimate. 

Then  in  the  item  printed  as  "  plumb  walls"  in  attic,  and 
"painting  windows,"  evidently  " paneling  r  should  be  substi- 
tuted for  " painting."  Doubtless  both  these  items  which 
Doyle  &  Co.  call  "furring  halls  in  attic  and  painting  windows," 


.    31 

and  for  winch  they  allow  $170,  are  included  in  tlieir  estimate 
of  finishing  the  South  wing.  So  striking  the  balance,  we 
shall  gather  from  Doyle  &  Go's  figures,  that  $2, 000  for  finish- 
ing the  two  wings  would  be  very  exactly  a  fair  price,  exclu- 
sive of  the  $500  for  "plumbing  the  attic  walls"  and  ''panel- 
ing windows^' 

For  all  this  work  Wolfe  &  Co.  allow  $750!  $500  for  finish- 
ing the  attic,  and  $250  for  "plumbing  walls  of  attic  and 
painting  windows!" 

The  floor  timbeis  alone  contain  over  15  M  of  lumber,  all 
long  lengths,  which  actually  cost  the  contractors  $25  per  M 
on  board  ship,  in  the  harbor,  with  scowing  and  hauling  to 
be  added.  The  2x8  scantling  spiked  on  each  side  of  these 
floor  timbers  for  trussing,  would  contain  over  10  M  feet, 
worth  over  $20  per  M. 

All  these  floor  timbers,  each  3x16  and  44  feet  long,  were 
one  by  one  put  in  a  frame,  and  (by  wedges  driven  between 
the  center  of  the  stick  and  the  frame)  "  sprung"  so  as  to  be 
about  4  inches  "crowning."  Then  these  2x8  pieces  were 
spiked  on  each  side  of  the  floor  timber  with  40d.  nails,  in 
truss  form,  so  as  to  keep  the  timber  "crowning"  when  taken 
out  of  the  frame  and  put  into  the  floor. 

It  will  be  seen  that  there  was  a  great  deal  of  work  in  this 
as  well  as  in  putting  the  floor  timber  in  place,  and  that  the 
nails  for  spiking  on  these  2x8  scantling  to  the  floor  timbers 
alone  make  a  heavy  item  of  expense.  It  is  evident,  that  the 
$750  allowed  by  Wolfe  &  Co.,  would  not  pay  for  the  timbers 
laid  in  the  floor — leaving  nothing  for  the  flooring,  or  labor 
in  laying  it;  for  the  wainscoting,  the  furring  or  plastering 
the  26  windows  finished,  or  for  the  painting.  Are  the  esti- 
mates of  such  ' '  experts  "  to  be  used  for  breaking  down  any 
man's  character? 

THE   TWENTY-SIX   SETS   INSIDE   BLINDS 

(Of  which  Doyle  &  Co.  say  they  can  only  find  16)  are 
in  the  two  wings  of  the  Mansard — 14  in  the  South,  and  12 
in  the  North  wing. 

Mr.  Miller,  who  made  them,  says  they  are  fully  worth 
the  price  charged,  and  Doyle  &  Co.  allow  at  the  same  rate 
for  the  16  sets  which  they  found. 


32 

EIGHT  EXTRA   WINDOWS   IN   BASEMENT. 

For  these  the  contractors  charged  $25  each,  while  Doyle 
<fe  Co.  only  allow  $12  each. 

These  windows  were  put  in,  after  the  basement  wall  was 
up;  and  I  appeal  confidently  from  Doyle  &  Co.'s  appraise- 
ment to  those  for  whom  they  have  done  extra  work.  Miller 
says  the  work  is  worth  more  than  was  charged,  for,  in  fact, 
there  were  four  double  doors,  and  four  windows  extra, 
instead  of  eight  windows.  And  Doyle  &  Co.  allow  $24  for 
"four  plank  door  frames  under  stoops."  Why  they  allow 
for  the  " frames"  only,  and  not  for  the  doors  also,  does  not 
appear.  Certainly,  the  doors  are  there,  and  must  be  "extra," 
if  the  "doorframes"  are. 

For  the  "plumbing,  gas-fitting,  and  steam-fitting,"  Doyle 
&  Co.  allow  the  same  amount  as  the  contractors  charged — 
$2,525.  This  item  is  entirely  ignored  by  Wolfe  &  Co.,  as 
well  as  the  $972.62  paid  the  contractors  for  excavation, 
which  is  allowed  in  full  by  Doyle  &  Co. 

In  a  fit  of  candor  very  unusual  with  them,  Wolfe  &  Co. 
allow  for  the  seven  mantels  extra  $oOO,  the  price  charged  by 
the  contractors;  nor  do  they  try  to  reduce  the  price  of  the 
tank,  which  is  charged  at  $30. 

Doyle  &  Co.  allow  only  $400  for  the  mantels;  but  add 
five  dollars  to  the  tank. 

Such  liberality  and  fairness  as  is  shown  by  Wolfe  &  Co. 
in  the  matter  of  the  mantels,  is  so  unexpected  and  so  praise- 
worthy, that  I  would  not  like  to  discourage  it.  I  may, 
therefore,  be  excused,  I  presume,  for  adopting  their  valua- 
tion. 

The  only  remaining  item  is  that  of  "curving  roof" — that 
is  to  say,  making  the  roof  of  the  Mansard  convex  on  its 
sides,  instead  of  straight,  as  at  first  planned.  For  this  the 
contractors  charged  $500.  Doyle  &  Co,  allow  them  $175, 
and  Wolfe  &  Co.  say  it  is  worth  only  $100. 

It  is  in  evidence,  that,  for  this  purpose,  a  strip  of  1J- 
inch  scantling,  eight  inches  wide  in  the  middle,  and  rounded 
down  to  a  point  at  each  end,  had  to  be  spiked  on  to  each 
rafter,  for  the  roof -boards  to  be  nailed  to,  so  as  to  make  the 
roof  convex.  Of  these  pieces  there  are  some  350  to  400,  of 


33 

varying  lengths,  from  10  feet  to  14  or  16.  They  were  got 
out  at  the  mill  by  the  witness  Miller,  who  says  they  are 
worth  forty  cents  each.  Here  we  have  $140  to  $160  for  this 
one  item— $40  to  $60  more  than  Wolfe  &  Co.  allow  for  the 
whole  job.  Add  to  this  the  extra  work  of  boarding  and 
shiugling  on  this  convex  surface,  the  spikes  used  in  nailing 
these  spikes  to  the  rafters,  the  curved  bead-mouldings,  etc., 
and  the  contractor's  charge  does  not  seem  too  high.  Mr. 
Miller's  testimony  seems  to  show  that  the  charge  is  reason- 
able. 

I  have  been  compelled  to  go  thus  tediously  through  the 
details  of  the  charges  made,  because  there  was  fraud  charged 
in  all  these  details. 


THE  CONCLUSION  OF   THE   WHOLE  MATTEE 

is,  that  the  Eegents  pursued  a  usual  and  proper  course  in 
placing  the  matter  of  building  the  College  of  Letters  in 
charge  of  the  Building  Committee;  and  that  the  further  cen- 
tralization of  power  in  the  hands  of  Dr.  Merritt  and  Presi- 
dent Gilman,  secured  greater  efficiency,  promptness,  and 
unity  of  action.  A  body  of  twenty-two  men, — be  they  the 
best  in  the  world,  cannot  act  efficiently  in  such  a  matter. 

The  trust  thus  imposed  upon  my  client  is  shown  to  have 
been  faithfully  executed.  I  have  shown  that  the  building, 
unlike  most  public  buildings,  is  worth  every  cent  it  cost,  and 
that  there  could  not  possibly  have  been  any  dishonest  prac- 
tices in  its  erection. 

I  have  shown  that  the  contractors  cannot  have  received 
for  their  services  and  profits  over  $3,260.  Being  $71.99  less 
than  the  three  and  three-quarter  per  cent,  profit  which 
POWER,  one  of  the  contractors,  writes  that  they  made  on  the 
work  done  by  them  at  the  University;  and  being  also  only 
fair  compensation  for  their  services, — without  profit. 

The  figures  could  hardly  corrrespond  more  exactly  with- 
out suspicion  of  collusion. 

THE  OMISSIONS    AND   SUBSTITUTIONS 

of  cheaper  work,  we  have  shown  to  be  very  far  within  the 

amount  allowed  for  them  by  the  contractors.     And  allowing 
5 


34 

(in  the  absence  of  the  plans  and  specifications)  every  item 
charged  by  our  opponents  in  this  line  the  amount  to  be 
deducted  on  account  thereof  in  the  aggregate  is  only 
$12,870  87  taking  the  estimate  of  the  experts  selected  by 
the  committee. 

The  contractors  allowed  for  the  omissions  and  changes 
for  the  cheaper,  and  their  gift  to  the  University,  $11,532; — 
within  $1,338  87  of  that  amount, —instead  of  the  $20,000, 
$30,000,  and  $40,000  heretofore  charged. 

But  nearly  two-thirds  of  this  $12,870  87  is  for  changes, 
which  are  not  proved  to  have  been  made,  which  Dr.  Merritt 
swears  he  never  authorized,  and  which  he  does  not  even  now 
know  or  suppose  to  be  really  changes  from  the  specifications, 
Mr.  Duncan  admits  that  Doctor  Merritt  never  told  him  he 
had  ordered  such  changes, — and  that  he  had  never  notified 
the  Doctor  that  in  these  respects  the  building  was  not  being 
constructed  as  required  by  the  specifications.  All  this  I 

have  shown. 

» 

THE   EXTEAS 

I  have  shown  to  be  charged  for  at  reasonable  prices.  Pos- 
sibly the  item  of  "curving  roof"  is  set  too  high;  and  the 
partition  and  arch  in  ladies'  room,  and  the  octagon  window 
may  be  charged  for  a  little  too  heavily.  Bat  it  is  evident, 
that  for  widening  the  porches,  and  finishing  the  wings  of  the 
Mansard,  the  contractors  have  charged  too  little; — enough 
certainly  to  more  than  counterbalance. 

This  comprises  the  mathematics  of  the  case,  and  the  fig- 
ures (which  cannot  lie)  completely  disprove  the  charges  of 
iraud  which  have  been  so  freely  made. 

THE  FURNISHING    OF   LUMBER 

by  Dr.  Merritt  has  been  assumed  to  be  illegal  and  dishon- 
est. I  deny  both  assumptions.  When  the  contractors  had 
agreed  to  construct  the  building  for  a  sum  certain,  it  made 
no  difference  to  the  University  where  they  bought  their 
lumber,  nor  even  what  price  they  paid  for  it.  The  Universi- 
ty's only  interest  was  in  having  good  lumber  furnished; 
and  there  is 


35 

NO   PRETENCE   THAT   POOR  LUMBER   WAS   USED. 

But  I  must  correct  a  great  misapprehension  in  this  matter, 
by  showing  how  it  came  about,  that  the  lumber  was  so  fur- 
nished. 

At  first  it  was  thought  by  the  Regents  that  they  could 
buy  the  material,  and  contract  for  the  labor.  Under  this 
impression  (it  being  shown  that  the  lumber  needed, — much 
of  it  being  of  long  lengths, — could  not  be  had  in  San  Fran- 
cisco or  Oakland,)  Dr.  Merritt,  by  consent  and  advice  of  the 
Board  of  Eegents,  ordered  the  coarse  lumber  from  Puget 
Sound,  by  telegraph.  Before  it  arrived,  the  accomplished 
Secretary  of  the  Board,  Mr.  Moulder,  had  called  the  atten- 
tion of  the  board  to  the  Statute  approved  March  28,  1872, 
requiring  the  building  to  be  constructed  by  contract. 

Proposals  were  at  once  called  for  by  advertisement,  and 
the 'contract  let  to  POWER  &  OUGH,  they  being  the  lowest 
bidders.  They  were  very  glad  to  take  the  lumber  off  Dr. 
Merritt's  hands,  and  he  was  glad  to  have  them  do  su.  If 
there  be  corruption  in  such  a  transaction,  then  undoubtedly 
my  client  is  corrupt. 

The  remainder  of  the  lumber,  comparatively  a  small 
item,  was  bought  by  Power  &  Ough,  at  Dr.  Merritt's  lumber 
yard.  They  had  always  bought  their  lumber  there;  he  never 
attended  personally  to  that  part  of  his  business,  and  knew 
no  more  than  one  of  the  Committee,  who  bought  lumber 
there,  unless  his  clerks  consulted  him  about  giving  credit  to 
some  one,  or  about  collecting  a  doubtful  debt.  It  did  not 
occur  to  him  to  say  to  his  clerks  that  they  might  sell  lumber 
to  Power  &  Ough  for  any  other  purpose,  but  must  not  sell 
to  them  for  use  in  this  contract.  Perhaps  it  would  have 
been  better  so  to  do,  as  a  matter  of  delicacy,  but  it  did  not 
occur  to  him  until  the  building  was  almost  done,  and  then 
he  confided  to  Dr.  Stebbins  (in  August,)  his  intention  of 
giving  to  the  University  whatever  profit  there  might  be  on 
this  lumber,  so  as  to  avoid  all  possible  cavil;  of  course  this 
amount  could  not  be  ascertained  with  precision  until  his 
yearly  balance-sheet,  made  up  on  the  first  day  of  the  new 
year,  should  show  what  percentage  of  his  sales  was  con- 
sumed by  yard  and  office  expenses.  Before  this  was  done, 
he  was  denounced  by  the  papers  for  alleged  complicity  in 


36 

frauds  in  this  transaction.  Of  course  no  payment  of  such 
profits  could  then  be  made  without  subjecting  him  to  the 
charge  of  being  frightened  into  making  restitution  for  a 
wrong.  He  does  not  choose  to  place  himself  in  that 
position. 

TAMPERING  WITH  THE  PROPOSALS, 

In  order  to  give  Power  &  Ougli  the  advantage  over  other 
bidders  by  knowing  the  amount  of  their  bids,  is  a  matter 
not  so  much  charged  against  my  client,  as  sneakingly  insin- 
uated. The  only  reason  assigned  for  this  insinuation  is,  that 
he  had  the  proposals  in  his  possession  over  night,  and  that 
when  they  were  opened,  in  the  presence  of  the  bidders, 
Power  &  Ougtis  bid  was  found  to  be  only  $150  less  than  that 
of  Mayberry! 

No  time  was  specified  in  the  advertisement  for  opening 
the  proposals.  Some  of  the  bidders  assumed  that  they 
would  be  opened  at  the  hour  up  to  which  proposals  were  to  be 
received.  Dr.  Merritt  did  not  even  know  when  that  was, 
and  at  the  time  happened  to  be  at  Berkeley,  with  President 
Gilman  and  two  other  gentlemen.  On  their  return,  the  pro- 
posals were  handed  to  him,  by  President  Gilman,  who  had 
received  them  from  the  janitor.  The  Doctor  did  not  at  first 
know  what  the  papers  were,  but  on  being  told,  informed 
such  of  the  bidders  as  remained,  that  he  could  not  open 
them  that  afternoon,  as  he  had  an  engagement  with  two 
gentlemen  who  were  waiting  to  bargain  with  him  about 
doing  the  plumbing  for  the  Grand  Central  Hotel.  By  con- 
sent, nine  o'clock  the  next  morning  was  fixed  for  opening 
the  bids,  at  which  time  the  Doctor,  and  President  Gilman 
opened  them,  in  presence  of  the  bidders,  tabulated  the  pro- 
posals; found  Power  &  Ough  the  lowest  bidders,  and  so  re- 
ported to  the  Board  at  its  next  meeting,  when  the  contract 
was  awarded  to  them. 

Dr.  Merritt  testifies  that  he  did  not  open,  or  cause,  or 
suffer  to  be  opened,  any  bid,  except  in  presence  of  such 
bidders  as  attended,  and  in  conjunction  with  President  Gil- 
man.  The  envelopes  have  been  shown  to  you,  and  present 
no  indications  of  having  been  tampered  with.  It  is  not 
pretended  that  there  is  any  evidence  to  the  contrary;  only 
that  there  was  opportunity  to  do  a  dishonest  thing. 


37 

I  have  not  patience  to  argue  such  a  matter,  and  if  I 
should  attempt  it,  I  fear  I  should  not  be  respectful  to  those 
who  deem  the  circumstances  good  ground  for  suspicion. 

As  we  do  not  deem  her  necessarily  the  most  virtuous  of 
her  sex,  who  is  most  ready  to  suspect  the  chastity  of  others, 
so  we  must  judge  that  no  man,  who  has  not  a  lurking  taint 
of  hereditary  predisposition  to  petty  larceny,  would  suspect 
that  a  gentleman  of  wealth,  character,  and  ?position,  would 
commit  such  a  crime,  merely  from  the  fact  that  he  had  op- 
portunity so  to  do. 

I  have  only  to  regret  that  POWER  &  OUGH  could  not 
be  present  to  testif  v  in  the  matter.  Their  absence  has  been 
sneered  at,  as  suspicious,  and  some  disreputable  editors 
have  spoken  of  them  as  "  running  off  to  Nova  Scotia  with 
their  ill-gotten  spoil." 

The  testimony  shows,  what  everybody  in  Oakland  knows, 
that  no  more  honorable,  high-minded,  trustworthy  men  ever 
did  business  there ;  that  their  plans  were  made  a  year  be- 
fore, to  return  to  their  native  place,  in  1873,  and  that  OUGH 
at  first  refused  to  figure  for  the  contract  for  building  the 
College  of  Letters,  lest  it  should  delay  his  departure.  Find- 
ing that  his  partner,  POWER,  would  be  kept  here  by  his 
contract  on  the  College  of  Agriculture,  so  long  as  to  give 
time  for  completing  the  College  of  Letters,  should  they  get 
the  contract,  they  made  the  bid  thereon,  which  was  accepted. 
When  their  work  in  the  two  colleges  was  done,  they  closed 
up  their  business  and  returned  to  Canada,  their  native  place, 
as  they  had  long  previously  planned. 

After  the  investigation  commenced,  Dr.  Merritt  tele- 
graphed to  Mr.  Ough  to  return  to  California,  to  testify  in 
the  matter;  but  letters  from  Mr.  Power  state  that  he  is  too 
sick  to  travel.  And  here  I  may  say,  that  failing  health  was 
the  chief  cause  of  their  giving  up  business  here. 

Mr.  Power's  testimony  would  be  worth  but  little,  as  he 
was  all  the  while  employed  in  the  College  of  Agriculture, 
and  knows  very  little  about  the  College  of  Letters — the  work 
on  which  was  entirely  superintended  by  Mr.  Ough. 

A  word  concerning  the  witnesses,  who  have  sought  to 
swear  away  the  good  name  of  Dr.  Merritt  and  of  the  con- 
tractors— and  I  have  done. 


38 

THE   WITNESS   DUNCAN. 

Chief  among  these,  is  Mr.  J.  W.  Duncan.  Strongly 
recommended  to  the  Regents,  he  was  by  them  appointed 
their  Superintendent  of  Construction,  and  trusted  thor- 
oughly by  them  to  watch  the  construction  of  the  College  of 
Letters.  Mr.  A.  S.  Hallidie,  Mr.  J.  Mora  Moss,  and  Rev. 
Horatio  Stebbins,  members  of  the  Board  of  Regents — as 
reputable  men  as  are  in  this  community —testify  to  their  re- 
liancs  upon  him  to  know  whether  the  work  was  well  done — 
their  statement  to  him  that  they  did  so  rely  upon  him,  and 
his  assurance  to  them  that  he  would  faithfully  guard  the  in- 
terests of  the  University,  and  keep  them  thoroughly  in- 
formed in  the  matter.  Dr.  Merritt  testifies  that  he  instructed 
Duncan  to  report  everything,  not  done  by  the  contractors  in 
accordance  with  the  specifications — only  not  to  stop  the 
work,  as  there  was  short  time  to  complete  the  building.  Mr. 
Duncan  certified,  in  writing,  to  the  performance  by  the  con- 
tractors, from  time  to  time,  of  the  work  on  which  they 
received  installment-payments;  and  when  the  College  of 
Letters  was  completed,  he  was  called  before  the  Board,  at 
Berkeley,  as  it  was  about  to  accept  the  building,  and  stated 
that  it  was  built  according  to  contract,  except  the  changes 
ordered  by  the  Building  Committee.  While  the  building 
was  in  progress,  and  after  its  completion,  he  took  every 
opportunity  to  assure  the  Regents,  that  everything  about  it 
was  going  on  well.  He  was  ever  loud  in  his  praise  of  the 
contractors,  especially  of  "Dick  Ough."  H-3  does  not  deny 
these  things.  He  says,  on  cross-examination,  that  no 
changes  were  ordered  by  the  committee,  or  by  Dr.  Merritt, 
except  those  mentioned  in  the  Doctor's  report,  to  the  Board. 
He  says  he  never  notified  Dr.  Merritt,  or  any  other  Regent, 
that  any  other  changes  were  made,  or  being  made. 

Yet,  this  man  has  the  effrontery  to  come  on  the  stand 
and  say  "that  he  had  no  duty  in  the  way  of  watching  or  super- 
vising the  construction  of  this  building,  and  that  changes 
which  cheapened  the  building  many  thousand  dollars  (out- 
side of  those  reported  by  Dr.  Merritt  to  the  Board)  were 
made  by  the  contractors. 

He  says  he  would  construct  such  a  building  for  ten  tJiou- 
sand  dollars  less  than  was  paid  the  contractors,  and  then 


39 

privately  tolls  Mr.  Gilchrist,  that  it  is  the  cheapest  public 
building  in  the  State,  and  could  not  be  duplicated  for  the 
money  it  cost. 

Ho  receives  the  original  plans  and  specifications  with 
strict  orders  (as  he  admits)  to  surrender  them  to  no  one 
without  a  written  order  from  Dr.  Merritt,  and  says  that  he 
delivered  them  to  the  contractors,  without  such  order. 

He  suppresses  these  papers,  to  help  along  the  plot 
against  Dr.  Merritt  and  the  other  Eegents,  and  tries  to  give 
the  impression,  that  they  were  taken  away  by  the  con- 
tractors. 

False  friend,  faithless  servant,  treacherous  conspirator, 
— he  is  sunk  so  low,  that  not  even  his  three  lawyers,  learned 
and  eloquent  though  they  be,  can  ever 

"Wake  Duncan  with  their  knocking," 

I  will  not  waste  further  time  upon  him,  but  pass  on  to  the 
other  witnesses, 

WOLFE,  BALL,  AND  MAYBERRY. 

Of  the  first  named,  it  is  enough  to  say — to  show  his 
animus — that  it  is  proved  that,  years  ago,  Dr.  Merritt  for- 
bade his  speaking  to  him,  and  they  have  not  been  on  speak- 
ing terms  since.  A  decent  delicacy  should  have  prohibited 
his  appearance  against  Dr.  Merritt  in  this  case. 

The  last  named  was  a  bidder  for  this  same  contract,  who 
shows  in  his  testimony  that  he  feels  very  sore  over  the  fact, 
that  Power  &  Ouyh  underbid  him  by  $150.  He  may  mean 
to  be  honest — though  his  refusal  to  correct  his  absurd  esti- 
mate of  the  cost  of  widening  the  four  porches,  does  not 
favor  that  theory.  His  prejudice  crops  out  as  boldly  as  that 
of  Mr.  Wolfe. 

Mr.  BALL  was  much  disappointed  that  Dr.  Merritt  would 
not  give  him  $1,000  for  making  over  the  plans  and  specifica- 
tions, which  Mr.  Newsom  did  for  $300  —  especially  as 
the  money  was  to  come  ont  of  the  University  funds,  and  not  out 
of  the  Doctors  own  pocket. 

When  cross-examined  on  this  point,  he  had  the  astound- 
ing impudence  to  tell  the  Doctor  that  he  had  refused  to  give 
him  the  job,  on  the  ground  that  he,  Ball,  "was  not  in  the 
ring." 


40 

What  sort  of  a  "ring"  this  is,  whose  members  go 
around  proclaiming  its  existence,  and  which  gives  its  mem- 
bers contracts  for  public  work  at  $300 — which  others  charge 
$1,000  and  $2,000  for — does  not  very  clearly  appear. 

I  would  not  be  understood  to  claim,  that  men  are  to  be 
presumed  to  testify  falsely  against  those  whom  they  don't 
like — or  by  whom  they  think  they  have  lost  a  job;  but  when 
men,  so  prejudiced,  make  estimates  of  the  value  of  omissions 
or  extras  in  a  building  so  absurdly  at  variance  with  those  of 
competent,  unprejudiced  men — as  those  made  by  these  three 
winesses  are — I  claim  that  no  weight  should  be  given  to 
them. 

DOCTOR  MERRITT'S  ALLEGED   INTEREST  IN  THE  CONTRACT. 

The  charge  that  my  client  was  interested  in  the  contract 
with  POWER  &  OUGH,  rests  solely  upon  Capt.  Wilcox's  state- 
ment; I  can  hardly  call  it  testimony.  He  refused  to  say, 
when  pressed  so  to  do  by  Mr.  Terrill,  that  Mr.  Power  told  him 
that  Dr,  Merritt  was  interested  in  the  contract.  But  he 
answered  in  the  affirmative  Mr.  Terrill's  question  "  Was  it 
your  impression  that  Power  &  Oagh  were  not  the  responsible 
parties  in  the  contract,  and  that  Dr.  Merritt  was  the  real  con- 
tractor?' 

If  the  most  degraded  Chinaman  were  on  trial  for  petty 
larceny,  no  other  man's  statements,  not  made  in  his  pres- 
ence, could  be  received  against  him.  Hearsay  evidence  is 
rigidly  excluded  by  every  judicial  tribunal. 

But  here,  where  the  reputation  (more  dear  than  life)  of  a 
Regent  of  the  University, — a  prominent  citizen  of  our 
State,  a  man  of  extensive  business  connections,  of  wealth, 
and  position,  (which  should  at  least  create  a  presumption 
that  he  would  not  commit  petty  larceny)  is  in  question,— 
you  have  allowed  in  evidence  against  him  not  even  the  hear- 
say statement  of  a  third  party  made  months  before,  not  in 
his  presence,  not  under  oath,  not  subject  to  cross-examina- 
tion,— but  the  "impression  "  made  on  still  another  person  by 
such  alleged  statement !!! 

I  appealed  to  you  at  the  hearing  to  at  once  strike  out 
such  testimony.  You  declined  to  do  it,  but  said  you  would 
not  be  influenced  by  improper  testimony.  Who  is  to  know 


41 

what  testimony,  of  all  that  taken  and  retained  in  the  case, 
you  are  influenced  by  ? 

Against  this  shadow  of  a  shade,  Dr.  Merritt  testifies  that 
he  never  had  any  interest  in  the  contract;  Power  &  Ough 
telegraph  that  they  were  the  only  contractors,  and  Dr.  Mer- 
ritt had  no  interest.  Surely  their  statement  by  telegraph  is 
weightier  than  the  "  impression"  made  on  Capt.  Wilcox, 
by  a  casual  remark  of  one  of  them  made  months  ago. 

A    GOOD    BUILDING. 

I  had  nearly  forgotten  to  notice  the  uniform  testimony  of 
the  architects,  builders,  carpenters,  plasterers,  and  painters, 
that  the  College  of  Letters  is  well  built .  Of  course  it  is 
not  pretended  that  it  is  a  "first  class  "  building.  None  such 
was  contemplated.  We  do  not  pretend  it  is  of  such  quality 
as  the  College  of  Agriculture,  which,  while  only  three- 
fourths  as  large,  cost  over  twice  as  much.  Farquharson 
says  it  is  "inferior";  but  explains  that  to  mean  that  it  is 
inferior  to  a  first  class  building, — the  other  college  for  in- 
stance. 

The  six  experts  employed  by  the  Regents  to  examine  it, 
unanimously  pronounce  it  a  "  GOOD,  FAIR  CONTRACT  JOB.  " 

Mr.  Frost,  a  veteran  painter,  and  also  Mr.  Farwell,  pro- 
nounce the  painting  "an  excellent  job  ".  The  former  was 
"  much  surprised  to  find  it  so  good  ",  and  the  latter  says  it 
is  better  than  the  painting  in  the  Grand  Central  Hotel,  the 
Mills  Institute,  or  even  the  Capitol  at  Sacramento. 

The  plasterers  say  that  work  is  excellent  for  two  coat  work, 
and  the  only  criticism  in  the  whole  matter,  which  is 
entitled  to  any  weight,  is  that  of  Mahoney,  upon  the 
roof.  Yet  the  experts  pronounced  the  roof  sufficient. 
The  leak  in  the  roof  proclaimed  early  in  the  investigation 
with  such  a  flourish  of  trumpets,  Mr.  Wright  says  is  merely 
a  defect  in  the  tinning,  which  $20  or  $30,  will  repair. 

The  floor  over  the  Assembly  Room  was  announced  in  the 
papers  to  be  giving  away,  so  that  it  had  to  be  propped  up.  It  is 
proved  that  it  would  hold  without  pillars  all  the  people  that  could 
find  room  to  stand  upon  it.  As  is  not  strange  with  timbers 
forty-four  feet  long,  the  beams  "  sprung "  a  little,  so  that 


42 

the  sliding  doors  overhead  would  run  together.  No  other 
inconvenience  was  experienced,  and  not  a  crack  in  the  ceiling 
is  to  be  seen.  And  I  may  here  add,  as  to  the  sliding  doors 
running  together,  that  I  am  assured  by  Prof.  Le  Conte,  that 
since  the  iron  columns  have  been  placed  below,  the  doors 
will  of  themselves  slide  together  or  apart,  as  the  columns  ex- 
pand with  the  heat,  or  contract  with  the  cold;  so  nicely  are 
the  doors  adjusted. 

And  now  what  shall  I  say  more  ?  I  have  shown  the 
charges  of  fraud  made  against  my  client  to  be,  not  only  un- 
supported by  the  evidence,  but  positively  disproved. 

I  have  shown  that  the  COLLEGE  OF  LETTERS  is  so  thor- 
ougly  worth  all  the  money  it  cost,  that.  THERE  COULD  NOT  BE 

ANY   FRAUD    IN   ITS   ERECTION. 

I  have  shown  that  the  witnesses  whose  testimony  was 
thought  to  bear  most  heavily  against  Dr.  Merritt,  are  preju- 
diced and  biassed, — -one  of  them  at  least  proved  entirely  un- 
trustworthy,— and  their  testimony  absurdly  in  conflict  with 
the  facts,  as  proved  by  competent  and  reliable  witnesses. 

I  have  shown  the  building  to  be  a  good  one,  well  built, 
"  a  good  contract  job  ", — commodious,  convenient, — in  every 
way  suited  for  the  purposes  it  was  built  for. 

At  the  investigation  we  delared  it  the  cheapest  public 
building  in  the  State  at  its  cost,  and  invited  comparison  with 
other  buildings,  public  or  private,  of  its  class.  The  com- 
mittee did  not  see  fit  to  institute  such  comparison. 

Instead  of  being  a  matter  calling  for  a  defence,  the  build- 
ing of  the  College  of  Letters  at  the  price  it  cost  is  and  .was 
a  thing  to  be  proud  of;  and  all  interested  in  the  University 
know  well  how  much  pride  was  taken  by  my  client  in  its 
speedy  erection,  its  convenient  arrangement,  the  good  quality 
of  its  material  and  workmanship,  and  its  general  excellence. 

Theory  of  "fraud"  so  suddenly  raised  against  him  in 
connection  with  it,  came  upon  him  like  a  thunderclap  from 
out  a  clear  sky. 

But  as  it  was  taken  up  by  one  after  another,  by  personal 
enemies,  by  disappointed  seekers  for  a  contract,  by  unprin- 
cipled editors — caring  nothing  whose  reputation  was  blasted, 


43 

so  a  sensation  might  be  created — by  eight-hour  leagues, — 
political  aspirants  and  discharged  employees; — as 

"At  once  there  rose  so  wild  a  yell 
***** 
As  all  the  fiends  from  heaven  that  fell , 
Had  pealed  the  banner-cry  of  hell.  " 

He  felt  obliged  to  forego  his  original  intention  of  remaining 
silent  and  letting  the  storm  spend  its  fury  without  notice. 
He  has  presented  his  case,  and  thanks  you  for  the  patience 
with  which  you  have  listened, 

He  trusts  to  your  candor,  and  your  sense  of  justice, 
to  put  an  end  tb  the  calumnies  by  which  he  has  been 
assailed,  by  your  ex  cathedra  announcement  that  all  the 
charges  of  fraud  made  against  him  in  •  this  connection  are, 
not  merely  unsustained  by  the  evidence,  but  completely  dis- 
proved. 

GEO.  A,  NOUESE, 
Counsel  for  Samuel  Merritt. 


4213< 

of  Dr.^errlitt 


308  z 

1,572 

N9 


INI) 


